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^•OFCAIIFI 

STUDIES 
IN   HISTORY   AN 
JURISPRUDENCE 


BY 

JAMES    BRYCE,  D.C.L. 

AUTHOR   OF 

'THE  HOLY  ROMAN  EMPIRE,"  "THE  AMERICAN  COMMONWEALTH,"  ETC 

FORMERLY  REGIUS  PROFESSOR  OF  CIVIL  LAW  IN  THE  UNIVERSITY 

OF  OXFORD;    HONORARY   FELLOW  OF    ORIEL   AND    TRINITY 

COLLEGES,    CORRESPONDING     MEMBER    OF    THE 

INSTITUTE    OF    FRANCE 

2  2  383 


OXFORD    UNIVERSITY    PRESS 

AMERICAN   BRANCH 

New  York  :    91  and  93  Fifth  Avenue 

LONDON :    HENRY    FROWDE 


THIS  VOLUME  WAS  TO  HAVE  BEEN  OFFERED 
TO  HENRY  SIDGWICK  (LATE  PROFESSOR  OF 
MORAL  PHILOSOPHY  IN  THE  UNIVERSITY  OF 
CAMBRIDGE)  WITH  WHOM  I  HAD  OFTEN  DISCUSSED 
THE  TOPICS  IT  DEALS  WITH,  AND  IN  WHOM 
I  HAD  ADMIRED,  DURING  AN  INTIMATE  FRIEND- 
SHIP OF  NEARLY  FORTY  YEARS,  A  SUBTLE  AND 
FERTILE  MIND,  A  CHARACTER  OF  SINGULAR  PURITY 
AND  BEAUTY,  AND  AN  UNFAILING  LOVE  OF  TRUTH. 

IT  IS  NOW  DEDICATED   TO   HIS   MEMORY. 


PREFACE 

This  volume  contains  a  collection  of  Studies  com- 
posed at  different  times  over  a  long  series  of  years.  It 
treats  of  diverse  topics:  yet  through  many  of  them  there 
runs  a  common  thread,  that  of  a  comparison  between 
the  history  and  law  of  Rome  and  the  history  and  law 
of  England.  I  have  handled  this  comparison  from  se- 
veral points  of  view,  even  at  the  risk  of  some  little 
repetition,  applying  it  in  one  essay  to  the  growth  of  the 
Roman  and  British  Empires  (Essay  I),  in  another  to 
the  extension  over  the  world  of  their  respective  legal 
systems  (Essay  II),  in  another  to  their  Constitutions 
(Essay  III),  in  others  to  their  legislation  (Essays  XIV 
and  XV),  in  another  to  an  important  branch  of  their 
private  civil  law  (Essay  XVI).  The  topic  is  one  profit- 
able to  a  student  of  the  history  of  either  nation ;  and  it 
has  not  been  largely  treated  by  any  writers  known  to 
me;  as  indeed  few  of  our  best  known  historians  touch 
upon  the  legal  aspects  of  history. 

Two  Essays  (III  and  IV)  embody  an  effort  to  examine 
political  constitutions  generally  from  comparatively 
unfamiliar  points  of  view.  Five  (IX,  X,  XI,  XII  and 
XIII)  are  devoted  to  the  discussion,  in  a  non-technical 
way,  of  problems  in  jurisprudence  which  have  both  a 
theoretical  and  a  historical — to  some  extent  also  a  prac- 
tical— side.  Another  sketches  in  outline  the  early  his- 
tory of  Iceland,  and  the  very  peculiar  constitution  of 
the  primitive  Icelandic  Republic.  Three  others  relate 
to  modern  constitutions.  One  contains  reflections  on 
the  history  of  the  constitution  of  the  United  States,  a 
second  describes  the  systems  of  the  two  Dutch  Repub- 


viii  PREFACE 

lies  in  South  Africa,  and  a  third  analyses  and  comments 
on  the  constitution  recently  created  for  the  new  Com- 
monwealth of  Australia. 

My  aim  throughout  the  book  has  been  to  bring  out 
the  importance,  sometimes  overlooked,  of  the  constitu- 
tional and  legal  element  in  history,  and  to  present  topics 
which,  because  somewhat  technical,  often  repel  people 
by  their  apparent  dryness,  in  a  way  which  shall  make 
them  at  least  intelligible — since  they  can  hardly  be  made 
seductive — to  a  reader  who  does  not  add  to  a  fair  gene- 
ral knowledge  of  history  any  special  knowledge  of  law. 
Technicalities  cannot  be  wholly  avoided;  but  I  hope 
to  have  indulged  in  none  that  were  not  absolutely 
necessary. 

The  longer  one  lives  the  more  is  one  impressed  by 
the  close  connexion  between  the  old  Greco-Italian 
world  and  our  own.  We  are  still  very  near  the  ancients ; 
and  have  still  much  to  learn  from  their  writings  and 
their  institutions.  The  current  of  study  and  education 
is  at  present  setting  so  strongly  towards  the  sciences 
of  nature  that  it  becomes  all  the  more  needful  for  those 
who  value  historical  inquiry  and  the  literature  of  the 
past  to  do  what  they  can  to  bring  that  old  world  into 
a  definite  and  tangible  relation  with  the  modern  time, 
a  relation  which  shall  be  not  only  stimulative  but  also 
practically  helpful. 

None  of  these  Studies  have  previously  appeared  in 
print  except  two,  viz.  those  relating  to  the  United  States 
and  to  the  two  Dutch  Republics;  and  both  of  these  have 
been  enlarged  and  revised.  My  thanks  are  due  to  my 
friend  Professor  Herbert  B.  Adams  of  Johns  Hopkins 
University,  Baltimore,  and  to  the  proprietors  of  the 
Forum  magazine  respectively  for  permission  to  repub- 
lish these  two. 

Some  Studies  were  (in  substance)  delivered  as  Public 
Lectures  at  Oxford,  during  the  years  1870-1893  (when 
T  held  the  Regius  Professorship  of  Civil  Law  there), 
pursuant  to  the  custom  which  exists  in  that  University 


PREFACE  ix 

for  a  professor  to  deliver  from  time  to  time  discourses 
dealing  with  the  wider  and  less  technical  aspects  of  his 
subject.  All  these  have,  however,  been  rewritten  for 
publication;  and  whoever  has  had  a  similar  experience 
will  know  how  much  more  time  and  trouble  it  takes  to 
rewrite  a  discourse  than  to  compose  one  dc  novo.  Two 
Lectures,  delivered  one  when  I  entered  on  and  the  other 
when  I  resigned  the  professorship,  have  been  appended, 
in  the  belief  that  they  may  have  some  interest  for  mem- 
bers of  the  University  and  for  those  who  watch  with 
sympathy  the  development  of  legal  teaching  in  England. 

I  have  endeavoured  to  bring  up  to  date  all  references 
to  recent  events,  so  that  when  such  events  are  mentioned 
the  book  may  be  taken  to  speak  as  from  1900  or  1901. 

As  it  is  now  nine  years  since  I  was  obliged  (when  I 
entered  Mr.  Gladstone's  Ministry  in  1892)  to  intermit 
any  minute  study  either  of  Roman  or  of  English  law, 
it  is  probable  that  the  book  may  disclose  an  imperfect 
knowledge  of  facts  and  views  given  to  the  world  during 
those  nine  years.  Under  these  conditions  I  might  have 
wished  to  keep  the  book  longer  before  publishing  it. 
But  life  is  short.  Some  of  the  friends  to  whose  com- 
ments and  criticisms  I  had  most  looked  forward  while 
composing  these  Studies  have  already  passed  away.  So 
it  seemed  better  to  let  what  I  have  written,  under  the 
constant  pressure  of  other  duties,  go  forth  now. 

Among  the  friends  whom  I  have  to  thank  for  informa- 
tion or  suggestions  are  Professors  A.  V.  Dicey,  Sir  F. 
Pollock,  Henry  Goudy,  and  Henry  Pelham  of  Oxford, 
Sir  Courtenay  Ilbert  (Parliamentary  Counsel  to  the 
Treasury),  Dr.  C.  L.  Shadwell  and  Mr.  Edward  Jenks 
of  Oxford,  Dr.  F.  Sigel  of  Warsaw,  and  Mr.  Jon 
Stefansson  of  Iceland. 

The  Index  has  been  prepared  by  Mr.  J.  S.  Cotton, 
to  whom  I  am  indebted  for  the  care  he  has  bestowed 
upon  it. 

June  27,  1901. 


CONTENTS 

ESSAY  I 

PACK 

The   Roman   Empire   and   the   British    Empire   in 

India 1-71 

Conquest  or  Absorption  by  modern  European  nations  of  the 

less  advanced  races 1 

Creation  by  this  process  of  a  sort  of  unity  of  mankind  .        2 

Earlier  effort  of  Rome  to  unify  mankind  ....  3 
Part  borne  by  England  in  the  work  of  ruling  and  civilizing 

new  territories 3 

The  Colonies  of  England  :  the  British  Empire  in  India        .        4 
Position  of  Rome  and  England  respectively  in  their  Empires        7 
Origin  of  the  British  Indian  compared  with  that  of  the  Ro- 
man Empire .7 

Conditions  favouring  Roman  and  British  Indian  conquest  .  9 
Military  character  of  Roman  and  British  rule  .  .  .11 
What  the  Roman  and  the  English  conquerors  have  owed  to 

natural  frontiers '  .        .        .12 

Strength  of  the  Roman  and  British  armies    .        .        .        .15 

Efforts  to  find  a  scientific  frontier 16 

The  Romans  and  English  as  Road  and  Railway  Builders  .  18 
Success  of  both  in  maintaining  internal  order  and  security  .  19 
Character  of  Roman  and  British  administration  ...  22 
Despotic  system  :  measure  of  self-government  left  to  the 

subjects 25 

Variations  in  provincial  administration  in  Roman  Empire 

and  India 29 

Revenue  and  taxation  of  the  two  Empires  ....  31 
Employment  of  native  subjects  in  civil  and  military  posts  .  35 
Civil  rights  of  conquerors  and  of  subjects  ....  38 
Respect  shown  to  native  religions  and  customs  :  contrast  of 

religious  feeling  in  ancient  and  in  modern  world  .         .       42 


COXTEXTs 


TACK 
48 

51 

52 

53 

59 

62 


Character  of  the  conquerors  as  a  source  of  their  strength  . 
Contrasts  between  the  two  Empires  :  geographical  position 

of  the  ruling  race 

Fusion  of  Romans  and  provincials  :  no  similar  fusion  of 

English  and  Indians 

Influence  of  Climate,  of  Colour,  of  Religion  .... 
Languages  and  literature  in  Roman  Empire  and  in  India  . 
Influences  which  favoured  fusion  in  Roman  Empire  absent 

from  India 

Retroactive  influences   of  the  provinces  on  Rome  and   of 

India  on  Britain 64 

What  the  experience  of  the  English  in  India  has  proved  .  67 
Causes  which  overthrew  the  Roman  Empire  .  .  .68 
Probable  future  of  British  power  in  India      ....      69 

ESSAY   II 

The  Extension  of  Roman  and  English  Law  through- 
out the  World 72-123 

Geographical  areas  now  covered  by  Roman  and  by  English 

Law 72 

Extension  of  Roman  Law  by  conquest           ....  75 

Methods  of  Legal  Administration  in  the  provinces                .  77 

Gradual  assimilation  of  Roman  and  Provincial  Law     .         .  83 

Establishment  of  one  law  for  the  Roman  Empire          .         .  84 

How  the  Romans  were  able  to  create  an  imperial  law         .  88 

Spread  of  Roman  Law  after  the  fall  of  the  Western  Empire  89^ 

Diffusion  of  English  Law  over  regions  settled  or  conquered  .  94 

Legal  systems  which  the  English  found  in  India  ...  97 

Policy  followed  by  the  English  in  dealing  with  Indian  Law  .  100 

Codification  in  India 103 

Reciprocal  action  of  English  and  Native  Law  on  one  another  106 

Merits  and  working  of  the  Anglo-Indian  Codes  .  .  .  108 
Roman  Law  in  the  Empire  compared  with  English  Law  in 

India 114 

Probable  future  of  English  Law  in  India  .  .  .  .118 
English  and  Roman  Law  over  the  world       .        .        .        .121 

ESSAY   III 
Flexible  and  Rigid  Constitutions        .       .       .     124-215 
Observations  on  the  Constitutions  of  Rome  and  England      .     124 


CONTENTS 

Old   Classification   of  Constitutions   as   Written   and  Un 
written     ......... 

Proposed  new  classification 

Flexible  Constitutions  :  how  far  distinguishable  from  laws 

in  general 

Origin  of  Flexible  Constitutions 

Strength  and  weakness  of  Flexible  Constitutions  . 
Such  Constitutions  are  rather  elastic  than  unstable 
Illustrations  from  the  Constitutions  of  Rome  and  England 
Dangers  possibly  inherent  in  Flexible  Constitutions 
Flexible  Constitutions  suited  to  aristocratic  governments 
Checks  applied  in  Rome  and  in  England 
Influence  of  Constitutions  on  the  mind  of  a  nation 
Illustrations  from  Rome  and  England 
Capacity  of  Constitutions  for  Territorial  Expansion 
Enumeration  of  existing  Rigid  Constitutions 
Circumstances  under  which  Rigid  Constitutions  arise  . 
Enactment  and  amendment  of  Rigid  Constitutions 
Various  modes  now  in  use  for  amending  them 
How  far  can  Rigid  Constitutions  be  definite  or  complete  ? 
Stability  of  Rigid  Constitutions     ..... 

The  interpretation  of  Rigid  Constitutions 
Contrast   of  Anglo-American  doctrines  with  those  of  the 
European  Continent         ...... 

American  views  as  to  Interpretation      .... 

Suitability  of  Rigid  Constitutions  to  Democracies 
Recent  changes  of  opinion  in  the  United  States  and  England 
Probable  future  of  the  two  types  of  Constitution 
Proposals  for  federalizing  the  British  Constitution 
Possible  creation  of  new  States  and  Constitutions 


126 
128 

132 
136 
J39 
143 

144 

149 
152 

155 

158 
161 
164 
167 
170 

174 
178 
184 

187 
*93 

195 
196 
198 
202 
205 
207 
210 


ESSAY   IV 

The  Action  of  Centripetal  and  Centrifugal  Forces 

on  Political  Constitutions      ....     216-262 

The  influence  of  aggregative  and  disjunctive  forces  on  po- 
litical societies 216 

Tendencies  which  may  act  either  Centripetally  or  Centrifu- 

gally        .        .         .        .         .         .         .        .         .        .221 

Influences  of  Interest  and  Sympathy 222 

Illustrations  of  the  action  of  Racial  and  Religious  sentiment    224 


xiv 


COXTEXTS 


In  the  progress  of  civilization,  material  interest  and  senti 

ment  may  be  opposed 

How   Constitutions  may  use  the  existing  Centripetal  and 

Centrifugal  forces    ....... 

Illustrations  from  Commerce,  Law  and  Religion  . 
Instances  of  the  troubles  caused  by  Racial  or  Religious  sen 

timent     ......... 

Methods  by  which  Constitutions  may  disarm  or  regulate  the 

centrifugal  forces  :  illustrations      .... 
Difficulties  due  to  differences  of  colour  in  races    . 
How  the  Constitutions  of  the  United  States  and  Switzerland 

have  acted       .  

The  Centripetal  force  generally,  but  not  always,  dominant 

in  European  history        ...... 

Effects  of  Conquest  and  of  Dynastic  Succession    . 
Probable  future  strength  of  the  centrifugal  and  centripetal 

forces  respectively  . 

Present   tendency  to  the  enlargement  or  consolidation  of 

States  is  not  necessarily  permanent 


228 

229 
232 

238 

242 
245 

250 

254 
256 

259 

261 


ESSAY  V 
Primitive  Iceland     .... 
Discovery  and  Settlement  of  Iceland     . 
Beginnings  of  a  Polity  :  the  Thing 
Rise  of  the  GoSi  or  Priest-Chieftain 
The  first  political  constitution  of  the  island 
Judicial  organization  and  powers  of  the  Althing 
The  Speaker  of  the  Law         .... 
Thingvellir  and  the  meetings  of  the  Althing 
General  character  of  the  Icelandic  Republic 
Growth  and  character  of  the  law  of  Iceland 
Complexity  of  the  constitution  and  the  law  . 
Sources  of  our  knowledge  of  the  law     . 
Illustrations  of  features  of  the  early  law 
An  action  for  the  ejectment  of  ghosts   . 
The  Judicial  Duel  :  Story  of  Gunnlaug  Snake's  Tongu 

Helga  the  Fair 

The  introduction  of  Christianity    .... 

Rllcctions  on  the  early  history  of  Iceland    . 

Fall  of  the  Republic  :  subsequent  fortunes  of  the  isle 


263-300 

.  263 

.  266 

.  268 

.  271 

.  274 

.  275 

.  276 

.  280 

.  282 

.  283 

.  287 

.  288 

!9I 


and 


292 

294 

296 

'299 


CONTENTS  iv 
ESSAY   VI 

PACE 

The  Constitution  of  the  United  States  as  seen  in 

the  Past 301-358 

Value  of  contemporary  views  of  an  institution       .        .        .  301 

The  Federalist:  Alex.  Hamilton  and  James  Madison          .  302 

The  United  States  in  a.d.  1788 303 

Predictions  of  the  opponents  of  the  New  Constitution  .         .  307 

Views  of  its  supporters  :  dangers  feared  by  them         .         .  309 

Examination  of  the  predictions  of  1788          ....  314 
Characteristic  merits  and  defects  of  American  Democracy 

only  slightly  foreseen 317 

The  Democracy  in  America  of  Alexis  de  Tocqueville          .  319 

Merits  and  flaws  in  Tocqueville's  study  of  the  United  States  320 

His  insufficient  knowledge  of  England           ....  323 

His  preoccupation  with  France 324 

The  deficiencies  observable  in  his  book  scarcely  affect  its 

present  value 327 

Condition  of  the  United  States  in  Tocqueville's  day      .         .  328 

His  description  of  the  salient  features  of  the  nation      .        .  332 

Advantages  which  he  conceives  Democracy  to  have  secured  337 

Evils  he  discovers  in  American  Democracy          .         .        .  338 

Causes  which  in  his  view  maintain  Republican  government  340 

His  forecasts  :  the  negroes  :  weakness  of  the  Federal  Union  341 

Points  omitted  in  his  description 345 

Chief  events  in  the  United  States  since  Tocqueville's  time  .  347 

Chief  political  changes  of  the  last  sixty-seven  years       .         .  348 

Examination  of  Tocqueville's  predictions      ....  349 

Summary  of  Tocqueville's  conclusions           ....  355 

General  course  of  events  in  America  since  1788    .         .        .  357 

What  Tocqueville  would  say  to-day 357 

ESSAY   VII 

Two  South  African  Constitutions      .       .       .     359-390 

Originality  of  the  Constitutions  of  the  two  Dutch  Republics  359 

Circumstances  under  which  they  arose         ....  361 

Constitution  of  the  Orange  Free  State 364 

Constitution  of  the  South  African  Republic  (Transvaal)       .  369 
Observations  on  the  Constitution  of  the  South  African  Re- 
public        374 


xvi  CONTENTS 

TAGK 

Is  it  a  Rigid  or  a  Flexible  Constitution  ?  375 

Controversy  as  to  the  so-called  '  testing  power  '   .         .         .  378 

The  Constitution  is  certainly  a  Flexible  one  ....  379 

Observations  upon  both  these  Constitutions           .         .         .  380 
Comparison  of  these  Constitutions  with  that  of  Britain  and 

that  of  the  United  States 383 

Relations  of  Executive  and  Legislature  in  these  Dutch  Re- 
publics       385 

Practical  Working  of  the  Constitution  of  the  Orange  Free 

State 387 

Working  of  the  Constitution  of  the  South  African  Republic  388 

Postscript 389 

ESSAY   VIII 

The  Constitution    of  the  Commonwealth  of    Au- 
stralia       391-462 

Interest  attaching  to  the  new  Constitution  of  Australia        .  391 
Origin  and  progress  of  the  movement  for  federalizing  Au- 
stralia   394 

Causes  which  induced  Federation 398 

Influence  of  a  Pan-Australian  sentiment       ....  401 

Physical  and  racial  conditions  favouring  Federation    .         .  403 
Comparison  with  the  conditions  of  the  United  States  and  of 

Canada    . 406 

Two  leading  types  of  Federal  Government  ....  408 
Distribution  of  powers   between  the  Nation  and  the  States 

in  the  Australian  Constitution 410 

Position  of  the  Australian  States  under  the  Constitution       .  413 
Differences  from  the  Federal  systems  of  the  United  States 

and  of  Canada 416 

The  National  Government  :  few  restrictions  on  its  powers  .  419 

The  Legislature  :  Representation  of  the  States  in  the  Senate  420 

The  House  of  Representatives 422 

The  Executive 424 

The  Judiciary 425 

Question  as  to  Constitutional  Appeals :  the  British  Govern- 
ment yield  to  Australian  sentiment        ....  426 
Intended   working   of    the    scheme   of  Government :   The 

Cabinet 428 

Provision  against  legislative  deadlocks          ....  431 


CONTENTS  xvii 

PAGE 

Relations  of  the  Two  Houses 432 

Financial  provisions  :  railways  and  rivers     ....  436 

Location  of  the  national  capital :  admission  of  New  States  .  436 

Mode  of  amending  the  Constitution 437 

Relations  of  the  Australian  Commonwealth  to  the  British 

Crown 438 

General  comparison  of  the  Australian  Constitution  with  that 

of  the  United  States 440 

Comparison  with  that  of  the  Dominion  of  Canada        .        .  440 

Further  observations  on  the  Constitution      ....  443 
It  is  less  strictly  Federal  and  more  National  than  that  of  the 

United  States 445 

Its  highly  democratic  character 447 

It  contemplates  a  party  system      ......  450 

Difficulties  which  may  arise  from  the  existence  of  a  third 

party 451 

What  political  issues  are  likely  to  arise  in  Australia  ?  .  452 
Probable  prominence  of  Economic  questions  .  .  .  455 
Possible  creation  and  admission  of  New  States  .  .  .  457 
Will  New  Zealand  enter  the  Federation  ?  .  .  .  .  458 
Tendencies  to  consolidation  may  be  strengthened  by  dis- 
putes with  foreign  powers 460 

Future  relations  of  Australia  to  Britain         ....  460 

ESSAY  IX 

Obedience 463-502 

Different  Theories  of  the  Nature  of  Political  Obedience       .  463 

The  grounds  of  compliance  in  general  :  Indolence       .        .  467 

Deference  and  Sympathy 460 

Reason  and  Fear 472 

Respective  strength  of  these  springs  of  Obedience       .         .  474 

Will  as  a  political  force  :  Illustrations  from  the  East   .         .  475 

Formation  of  the  habit  of  Obedience  in  the  individual          .  478 

Influences  forming  Obedience  in  early  societies   .        .         .  479 

Slight  interest  of  men  in  liberty  for  its  own  sake  .         .         .  482 

Is  the  tendency  to  obey  likely  to  decrease  ?  .        .        .         .  484 

Influences  apparently  making  for  subordination  .         .         .  485 
What  may  be  hoped  for  the  future  of  democratic  govern- 

ment 488 

How  a  pessimist  might  view  existing  conditions  .        .        .  489 


iviii  CORTES  TB 

PAGE 

Conclusion  :  The  disposition  to  obey  will  be  permanent      .  496 
Note  on  the  application  to  the  definitions  of  Jurisprudence 

of  a  theory  of  Obedience 499 

ESSAY   X 

The  Nature  of  Sovereignty 503-555 

Confusions  regarding  the  term  Sovereignty  ....  503 

Sovereignty  de  iure  and  de  facto  must  be  distinguished       .  505 
Sovereignty  de  iure  exists  in  the  sphere  of  law  only,  and  is 

not  concerned  with  obedience  .....  509 
Sovereignty  de  facto  :  concrete  instances  .  .  .  .511 
Relations  of  Sovereignty  de  iure  to  that  de  facto          .         .515 

Action  and  reaction  of  each  on  the  other       ....  519 
The   Roman  doctrine  of  Sovereignty  :  the  people  are  the 

source  of  political  power 527 

Mediaeval  views  of  Sovereignty  :  Emperor  and  Pope  .         .  529 

New  theories  of  the  sixteenth  and  seventeenth  centuries      .  531 

Bodin,  Althaus,  Hobbes 533 

Relation  of  Hobbes'  system  to  the  events  of  his  time     .         .  534 

Bentham  revives  Hobbes'  doctrine 536 

Views  of  John  Austin  :  illustrations  of  their  unsoundness     .  537 
Confusion  of  various  questions  regarding  Sovereignty  which 

are  really  distinct 541 

Rights  in  the  moral  sphere  of  Sovereignty  de  iure  and  Sove- 
reignty de  facto 544 

Sovereignty  in  International  Relations          ....  546 

Sovereignty  in  a  Federation 549 

Conclusion  :    Theoretical    Controversies    regarding    Sove- 
reignty have  mostly  had  their  origin  in  current  politics  .  552 

ESSAY   XI 

The  Law  of  Nature 556-606 

Origin  of  the  notion  of  Nature  as  a  ruling  force    .         .        .  556 

It  is  different  from  modern  conception  of  the  Laws  of  Nature  560 

Nature  as  a  force  in  human  society 563 

The  term  '  Natural '  as  applied  to  Customs  and  Laws  .         .  564 

St.  Paul  and  the  Greek  philosophers  on  Natural  Law  .         .  566 

The  Roman  Law  of  the  Nations  (/us  Gentium)  .         .         .  570 

How  the  'common  law  of  the  nations'  was  formed       .         .  572 

Cicero  on  the  Law  of  the  Nations  and  Law  of  Nature.         .  575 


CONTEST* 


Growth  of  the  idea  of  Natural  Law  among  the  jurists 
Practical  identification  of  Ius  Gentium  and  Jus  Naturae 
Points  of  difference  which  remained  :   Slavery 
Extension  of  Roman  citizenship  removes  the  need  for  a  Ius 

Gentium  ........ 

Senses  in  which  the  jurists  use  the  term  '  Nature  ' 

Value  and  practical  influence  of  the  notion  of  Natural  Law 

The  Law  of  Nature  and  Law  of  God  in  the  Middle  Ages 

The  Law  of  Nature  in  Modern  Times 

Its  relation  to  the  Law  of  England         .... 

Its  influence  on  the  rise  of  International  Law 
'  Natural  Law '  as  meaning  a  Philosophy  of  Law 
Conclusion  :  Comparative  quiescence  of  the  idea  in  recent 

times 


578 
581 

583 

585 
586 
588 
593 
597 

599 
602 
604 

604 


ESSAY   XII 
The  Methods  of  Legal  Science     ....     607-637 
No  Philosophy  of  Law  among  the  Roman  Jurists  ;  is  such  a 

Philosophy  necessary  or  serviceable  ?     .         ...  607 

Four  Methods  employed  in  Legal  Science    ....  609 

The  Metaphysical  Method  :  German  Naturrecht         .         .  609 

The  Analytic  Method  :  the  Benthamites       .         .         .         .  612 

Errors  in  John  Austin's  use  of  it 614 

The  Historical  Method 617 

The  Comparative  Method       . 619 

Value  of  these  four  Methods  respectively      ....  622 

How  they  may  best  be  applied  to  Legal  Study      .         .         .  624 
Did  the  Romans  suffer  from  having  no  general  Philosophy 

of  Law? 628 

Merits   observable  in  the  Roman  Jurists  :   comparison   of 

their  treatises  with  those  of  English  lawyers          .         .  630 
Summary  :  The   Roman  Jurists  are  philosophical  in   spirit 

and  in  their  practical  handling  of  law    ....  636 


ESSAY    XIII 
The  Relations  of  Law  and  Religion  .        .     638-668 

Apparent  Antagonism  of  Law  and  Religion  .         .         .     638 

Close    connexion    of  Law  and  Religion  in    early  states  of 

Society 640 

Differences  in  this  respect  between  different  peoples    .         .     643 


ii  CONTENTS 

PAGE 

The  Jews  in  Roman  times  :  primitive  Christianity       .         .  644 

Islam  ;  identification  of  Law  with  Religion  .  .  .  646 
Illustrations  from  a  Musulman  University  :  the  Mosque  El 

Azhar  at  Cairo 646 

Description  of  El  Azhar  and  its  Teaching  ....  647 
Course  of  Instruction  :  Graduation:  Endowments  .  .651 
Resemblances  of  El  Azhar  to  the  European  Universities  of 

the  Middle  Ages 656 

Causes  of  the  arrested  development  of  Musulman  Univer- 
sities          658 

Nature  and  consequences  of  the  Musulman  identification  of 

Law  and  Religion 658 

Identity  of  State  and  Church  under  Islam     ....  663 

How  Christianity  avoided  a  similar  identification         .         .  665 


ESSAY   XIV 

Methods   of    Law-making    in    Rome   and    in    Eng- 
land           669-744 

Relations  of  the   History  of  Law  to  the  Constitutional   or 

Political  History  of  a  Country 669 

Law-making  Authorities  in  general 670 

Three  main   sources  of  Law  :  the  Ruling   Authority,  the 

Magistrate,  and  the  Legal  Profession     ....  674 

The  Jurists  as  makers  of  Law  in  earlier  times       .         .         .  676 

Changed  position  of  the  Jurists  under  the  Empire        .         .  677 

Differences  between  the  action  of  Roman  and  English  Jurists  681 

Roman  Treatises  compared  with  English  Reports       .         .  685 

Magistrates  and  Judges  :  in  what  sense  Law-makers  .         .  687 

The  Praetor  at  Rome 691 

Nature  and  Working  of  the  Praetor's  Edict          .         .         .  693 

The  English  Chancellor 695 

Praetorian  Edicts  compared  with  English  Case-Law   .         .  698 

Further  observations  on  Praetorian  methods         .         .         .  703 

Strong  and  weak  points  in  the  English  Case-System    .         .  705 

Direct  Legislation  at  Rome  :  its  Organs       ....  708 
The  Popular  Assembly  :  its  method  of  legislating         .         .711 

Merits  of  the  Roman  Statutes 713 

Legislation  by  the  Senate  :  its  characteristics       .         .         .  716 

Direct  legislation  by  the  Emperor 720 

Vast  powers  of  the  Emperor  :  his  Privy  Council  .         .         .  724 


CONTENTS  xxi 

y^     PAGE 

Defects  in  Imperial  legislation 726 

Profusion  and   inferiority  of   legislation  under  the  later 

Emperors 728 

Direct  legislation  in  England  :  its  history     ....  731 

Advantages  of  Parliament  and  Congress  for  legislation  .  732 
Strictures   commonly   passed   on   English    and    American 

Statutes 734 

Difficulties  incident  to  Parliamentary  legislation  .        .  735 

Reflections  suggested  by  the  history  of  English  compared 

with  that  of  Roman  legislation 739 

Some  branches  of  law  better  fitted  than  others  to  be  handled 

by  direct  legislation 741 

ESSAY   XV 

The  History  of  Legal  Development  at  Rome  and 

in  England .    745-781 

Roman  and  English  Law  have  both  been  developed  in  a 

comparatively  independent  way 745 

Conspicuous  epochs  of  legal  change  at  Rome  and  in  England  747 
Forces  and  influences  chiefly  active  in  determining  legal 

changes 750 

Roman  Legal  History  during  the  republican  period     .         .     751 
Effect  on  the  law  of  the  establishment  of  the  imperial  auto- 
cracy        755 

Rise  of  Christianity  :  dissolution  of  the  Empire  in  the  West  757 
The  decline  in  legal  learning  induced  Codification  .  .  758 
Political  events  and  External  Influences  are  the  chief  sources 

of  changes  in  Roman  Law 761 

Causes  of  legal  change  operative  in  England  :  the  periods 

of  Henry  II  and  Edward  I 762 

The  Reformation  and  the  Civil  War 765 

The  Reform  Act  of  1832  and  the  Victorian  Epoch       .         .     767 
The  Law  of  Family  and  Inheritance  at  Rome  and  the  Law 

of  Land  in  England        .         .  .         .         .         .     769 

Effects  of  Territorial  Expansion  on  Roman  and  on  English 

Law       ..........    771 

Economic   influences  more  generally  potent  in  England : 

political  in  Rome 773 

Observations  on  France  and  Germany         .  776 


ix  ii  COX  TEXTS 

PAOH 

Private  law  is  the  branch  least  affected  by  political  changes  778 

Legal  topics  in  which  further  advances  may  be  looked  for  779 

ESSAY   XVI 

Marriage  and  Divorce  in   Roman  and  in   English 

Law 782-859 

Diversity  of  the  Law  of  Marriage  in  different  countries  .  782 
Features  generally  characteristic  of  the  institution  in   the 

ancient  Mediterranean  World 784 

Early  Marriage  law  of  the  Romans 786 

Subordination  of  the  Wife  :  the  '  Hand  Power  '  {Manus)     .  787 

Transition  to  a  freer  system  .......  789 

Later  Marriage  Law  :  nature    of  the   personal  relation   it 

creates 791 

Relation  of  the  Consorts  as  respects  Property  .  .  .  794 
General  character  of  the  Roman  Conception  of  Marriage  : 

its  freedom      .                 '.  798 

Roman  doctrine  and  practice  regarding  Divorce           .         .  799 

Influence  of  Christianity  on  Imperial  Legislation           .         .  803 

Other  Roman  rules  :  prohibited  degrees  :   Concubinatus    .  806 
Marriage  under  the  Canon  Law    .         .         .         .         .         .811 

The  English  Law  :  jurisdiction  of  the  Spiritual  Courts  .  814 
Relations  of  the  Consorts  as  respects  Property  under  Eng- 
lish Law 818 

Amendment   of  English    Matrimonial    Law   by   courts    of 

Equity  and  by  Legislation 821 

Personal  Liberty  of  the  Wife  now  well  established  .  .  823 
English  law  has  wavered  between  different  theories  of  the 

relation 824 

Divorce  under  the  Canon  Law 825 

History  of  Divorce  in  England      ......  827 

Divorce  Laws  in  the  United  States 830 

Laxity  of  Procedure  in  Divorce  Cases 832 

Statistics  of  Divorce  in  the  United  States  :  causes  for  which 

it  is  granted 834 

Illustrations  from  the  '  Western  Reserve  '  counties  of  Ohio  836 

Divorce  in  modern  European  countries  ....  839 
Comparison  of  the  phenomena  of  Divorce  in  the  Roman  and 

in  the  Modern  World 842 


CONTEXTS  xxiii 

PAGE 

Causes   now  tending  to  weaken   the   permanence  of  the 

Marriage  Tie 846 

Does  the  growth  of  Divorce  betoken  a  moral  decline  ?         .  849 

Influence  of  the  Church  and  of  the  Law        ....  851 

Does  the  English  Divorce  Law  need  amendment?        .         .  852 

Changes  in  Theory  and  in  Sentiment  regarding  Marriage   .  856 

Inaugural  Lecture 860 

Valedictory  Lecture 887 

Index 909 


THE    ROMAN    EMPIRE    AND    THE 
BRITISH    EMPIRE    IN    INDIA 

In  several  of  the  Essays  contained  in  these  volumes 
comparisons  are  instituted  between  Rome  and  Eng- 
land in  points  that  touch  the   constitutions   and   the 
laws  of  these  two  great  imperial  States.     This  Essay 
is  intended  to  compare  them  as  conquering  and  ruling 
powers,  acquiring  and  administering  dominions  outside 
the  original  dwelling-place  of  their  peoples,  and  impress- 
ing upon  these  dominions  their  own  type  of  civilization. 
This  comparison  derives  a  special  interest  from  a 
consideration  of  the  position  in  which  the  world  finds 
itself  at  the  beginning  of  the  twentieth  century.     The 
j-   great  civilized  nations  have  spread  themselves  out  so 
v^  widely,  and  that  with  increasing  rapidity  during  the 
U)  last  fifty  years,  as  to  have  brought  under  their  dominion 
"^  or  control  nearly  all  the  barbarous  or  semi-civilized 
fl  races.     Europe — that  is  to  say  the  five  or  six  races 
'  which  we  call  the  European  branch  of  mankind — has 
annexed  the  rest  of  the  earth,  extinguishing  some  races, 
absorbing  others,  ruling  others  as  subjects,  and  spread- 
ing over  their  native  customs  and  beliefs  a  layer  of 
European  ideas  which  will  sink  deeper  and  deeper  till 
the  old  native  life  dies  out.    Thus,  while  the  face  of  the 
earth  is  being  changed  by  the  application  of  European 
science,  so  it  seems  likely  that  within  a  measurable  time 
European  forms  of  thought  and  ways  of  life  will  come 
to  prevail  everywhere,  except  possibly  in  China,  whose 


2  ROMAN  AND   BRITISH   UMPIRES 

vast  population  may  enable  her  to  resist  these  solvent 
influences  for  several  generations,  perhaps  for  several 
centuries.  In  this  process  whose  agencies  are  migration, 
conquest,  and  commerce,  England  has  led  the  way  and 
has  achieved  the  most.  Russia  however,  as  well  as 
France  and  Germany,  have  annexed  vast  areas  inhabited 
by  backward  races.  Even  the  United  States  has,  by 
occupying  the  Hawaiian  and  the  Philippine  Islands, 
entered,  somewhat  to  her  own  surprise,  on  the  same 
path.  Thus  a  new  sort  of  unity  is  being  created  among 
mankind.  This  unity  is  seen  in  the  bringing  of  every 
part  of  the  globe  into  close  relations,  both  commercial 
and  political,  with  every  other  part.  It  is  seen  in  the 
establishment  of  a  few  '  world  languages  '  as  vehicles 
of  communication  between  many  peoples,  vehicles  which 
carry  to  them  the  treasures  of  literature  and  science 
which  the  four  or  five  leading  nations  have  gathered.  It 
is  seen  in  the  diffusion  of  a  civilization  which  is  every- 
where the  same  in  its  material  aspects,  and  is  tolerably 
uniform  even  on  its  intellectual  side,  since  it  teaches  men 
to  think  on  similar  lines  and  to  apply  similar  methods 
of  scientific  inquiry.  The  process  has  been  going  on  for 
some  centuries.  In  our  own  day  it  advances  so  swiftly 
that  we  can  almost  foresee  the  time  when  it  will  be  com- 
plete. It  is  one  of  the  great  events  in  the  history  of  the 
world. 

Yet  it  is  not  altogether  a  new  thing.  A  similar  process 
went  on  in  the  ancient  world  from  the  time  of  Alexander 
the  Macedonian  to  that  of  Alaric  the  Visigoth.  The  Greek 
type  of  civilization,  and  to  some  extent  the  Greek  popu- 
lation also,  spread  out  over  the  regions  around  the  east- 
ern Mediterranean  and  the  Euxine.  Presently  the  con- 
quests of  Rome  brought  all  these  regions,  as  well  as  the 
western  countries  as  far  as  Caledonia,  under  one  govern- 
ment. This  produced  a  uniform  type  of  civilization 
which  was  Greek  on  the  side  of  thought,  of  literature, 
and  of  art,  Roman  on  the  side  of  law  and  institutions. 
Then  came  Christianity  which,  in  giving  to  all  these 


ROMAN  AND   BRITISH  EMPIRES  3 

countries  one  religion  and  one  standard  of  morality, 
created  a  still  deeper  sense  of  unity  among  them.  Thus 
the  ancient  world,  omitting  the  barbarous  North  and  the 
semi-civilized  heathen  who  dwelt  beyond  the  Euphrates, 
became  unified,  the  backward  races  having  been  raised, 
at  least  in  the  upper  strata  of  their  population,  to  the 
level  of  the  more  advanced.  One  government,  one  faith, 
and  two  languages,  were  making  out  of  the  mass  of  races 
and  kingdoms  that  had  existed  before  the  Macedonian 
conquest,  a  single  people  who  were  at  once  a  Nation  and 
a  World  Nation. 

The  process  was  not  quite  complete  when  it  was  inter- 
rupted by  the  political  dissolution  of  the  Roman  do- 
minion, first  through  the  immigrations  of  the  Teutonic 
peoples  from  the  north,  then  by  the  terrible  strokes  dealt 
at  the  already  weakened  empire  by  the  Arab  conquerors 
from  the  south-east.  The  results  that  had  been  attained 
were  not  wholly  lost,  for  Europe  clung  to  the  Greco- 
Romano-Christian  civilization,  though  in  a  lowered  form 
and  with  a  diminished  sense  of  intellectual  as  well  as  of 
political  unity.  But  that  civilization  was  not  able  to  ex- 
tend itself  further,  save  by  slow  degrees  over  the  north 
and  towards  the  north-east.  Several  centuries  passed. 
Then,  at  first  faintly  from  the  twelfth  century  onwards, 
afterwards  more  swiftly  from  the  middle  of  the  fifteenth 
century,  when  the  intellectual  impulse  given  by  the  Re- 
naissance began  to  be  followed  by  the  rapid  march  of 
geographical  discovery  along  the  coasts  of  Africa,  in 
America,  and  in  the  further  east,  the  process  was  re- 
sumed. We  have  watched  its  later  stages  with  our  own 
eyes.  It  embraces  a  far  vaster  field  than  did  the  earlier 
one,  the  field  of  the  whole  earth.  As  we  watch  it,  we  are 
naturally  led  to  ask  what  light  the  earlier  effort  of  Nature 
to  gather  men  together  under  one  type  of  civilization 
throws  on  this  later  one.  As  Rome  was  the  principal 
agent  in  the  earlier,  so  has  England  been  in  the  later 
effort.  England  has  sent  her  language,  her  commerce, 
her  laws  and  institutions  forth  from  herself  over  an  even 


4  ROMAN   AND  BUITISH  EMPIRES 

wider  and  more  populous  area  than  that  whose  races 
were  moulded  into  new  forms  by  the  laws  and  institu- 
tions of  Rome.  The  conditions  are,  as  we  shall  see,  in 
many  respects  different.  Yet  there  is  in  the  parallel 
enough  to  make  it  instructive  for  the  present,  and  pos- 
sibly significant  for  the  future. 

The  dominions  of  England  beyond  the  seas  are,  how- 
ever, not  merely  too  locally  remote  from  one  another, 
but  also  too  diverse  in  their  character  to  be  compared 
as  one  whole  with  the  dominions  of  Rome,  which  were 
contiguous  in  space,  and  were  all  governed  on  the  same 
system.  The  Britannic  Empire  falls  into  three  terri- 
torial groups,  the  self-governing  colonies,  the  Crown 
colonies,  and  the  Indian  territories  ruled  by  or  depen- 
dent on  the  sovereign  of  Britain.  Of  these  three  groups, 
since  they  cannot  be  treated  together,  being  ruled  on 
altogether  different  principles,  it  is  one  group  only  that 
can  usefully  be  selected  for  comparison  with  the  Roman 
Empire.  India  contains  that  one  group.  She  is  fitter 
for  our  purpose  than  either  of  the  other  two  groups, 
because  the  self-governing  colonies  are  not  subject  ter- 
ritories administered  from  England,  but  new  Englands 
planted  far  away  beyond  the  oceans,  reproducing,  each 
in  its  own  way,  the  features  of  the  constitution  and 
government  of  the  old  country,  while  the  Crown  colonies 
are  so  scattered  and  so  widely  diverse  in  the  character 
of  their  inhabitants  that  they  cannot  profitably  be  dealt 
with  as  one  body.  Jamaica,  Cyprus,  Basutoland,  Singa- 
pore, and  Gibraltar,  have  little  in  common  except  their 
dependence  on  Downing  Street.  Neither  set  of  colonies 
is  sufficiently  like  the  dominion  of  Rome  to  make  it  pos- 
sible for  us  to  draw  parallels  between  them  and  it. 
India,  however,  is  a  single  subject  territory,  and  India  is 
compact,  governed  on  the  same  principles  and  by  the 
same  methods  over  an  area  not  indeed  as  wide  as  that  of 
the  Roman  Empire  but  more  populous  than  the  Roman 
Empire  was  in  its  palmiest  days.  British  India  (includ- 
ing Burma)  covers  about  965.000  square  miles,  and  the 


ROMAN  AND  BRITISH  EMPIRES  5 

protected  States  (including  Kashmir,  but  not  Nepal  and 
Bhotan);  about  600,000  square  miles,  making  a  total 
of  (roughly)  1,565,000  square  miles,  with  a  population 
of  nearly  29olhiirions.  The  area  of  the  territories  in- 
cluded in  the  Roman  Empire  at  its  greatest  extent  (when 
Dacia  and  the  southern  part  of  what  is  now  Scotland  be- 
longed to  it)  may  have  been  nearly  2,500,000  square 
miles.  The  population  of  that  area  is  now,  upon  a  very 
rough  estimate,  about  210  millions.  What  it  was  in 
ancient  times  we  have  no  data  even  for  guessing,  but  it 
must  evidently  have  been  much  smaller,  possibly  not 
100  millions,  for  although  large  regions,  such  as  parts 
of  Asia  Minor  and  Tunisia,  now  almost  deserted,  were 
then  filled  by  a  dense  industrial  population,  the  increase 
in  the  inhabitants  of  France  and  England,  for  instance, 
has  far  more  than  compensated  this  decline. 

The  Spanish  Empire  in  America  as  it  stood  in  the 
sixteenth  and  seventeenth  centuries  was  still  vaster  in 
area,  as  is  the  Russian  Empire  in  Asia  to-day.  But  the 
population  of  Spanish  America  was  extremely  small  in 
comparison  with  that  of  the  Roman  Empire  or  that  of 
India,  and  its  organization  much  looser  and  less  elabo- 
rate1. Both  the  Spanish  and  the  Russian  Empires,  how- 
ever, furnish  illustrations  which  we  shall  have  occasion 
presently  to  note. 

Of  all  the  dominions  which  the  ancient  world  saw,  it 
is  only  that  of  Rome  that  can  well  be  compared  with 
any  modern  civilized  State.  The  monarchies  of  the 
Assyrian  and  Egyptian  conquerors,  like  those  of  the 
Seleucid  kings  and  of  the  Sassanid  dynasty  in  Persia, 
stood  on  a  far  lower  level  of  culture  and  administrative 
efficiency  than  did  the  Roman.  Neither  was  there  in  the 
Middle  Ages  any  far  stretching  dominion  fit  to  be 
matched  with  that  of  Rome,  for  the  great  Ommiad 
Khalifate  and  the  Mogul  monarchy  in  India  were  both 
of  them  mere  aggregates  of  territories,  not  really  unified 

1  The  total  area  of  the  Russian  Empire  exceeds  8,000,000  square  miles,  and  the 
population  is  about  130,000,000. 


6  ROMAN   ASE>  BRITISH   EMPIRES 

by  any  administrative  system,  while  the  authority  or 
suzerainty  of  the  Chinese  sovereigns  over  Turkistan, 
Mongolia,  and  Tibet  presents  even  fewer  points  of  resem- 
blance. So  when  we  wish  to  examine  the  methods  and 
the  results  of  British  rule  in  India  by  the  light  of  any 
other  dominion  exercised  under  conditions  even  re- 
motely similar,  it_is  to  the  Roman  Empire  of  the  cen- 
turies between  Augustus  and  Honorius  that  we  must  go. 

When  one  speaks  of  conditions  even  remotely  similar 
one  must  frankly  admit  the  existence  of  an  obvious  and 
salient  point  of  contrast.  Rome  stood  in  the  middle  of 
her  dominions,  Britain  stands,  by  the  Red  Sea  route, 
six  thousand  miles  from  the  nearest  part  of  hers.  She 
can  reach  them  only  by  water,  and  she  conquered  them 
by  troops  which  had  been  sent  around  the  Cape  over 
some  thirteen  thousand  miles  of  ocean.  Here  there  is 
indeed  an  unlikeness  of  the  utmost  significance.  Yet, 
without  minimizing  the  importance  of  the  contrast,  we 
must  remember  that  Britain  can  communicate  more 
quickly  with  the  most  distant  part  of  her  territories  than 
Rome  could  with  hers.  It  takes  only  twenty-two  days 
to  reach  any  part  of  British  India  (except  Kashmir  and 
Upper  Assam)  from  London.  But  it  took  a  nimble,  or 
as  Herodotus  says,  a  '  well  girt  traveller,'  perhaps  forty 
days  from  Rome  to  reach  Derr  on  the  Nile,  the  last  for- 
tress in  Nubia  where  Roman  masonry  can  be  seen,  or 
Gori,  at  the  foot  of  the  Caucasus,  also  a  Roman  strong- 
hold, or  Old  Kilpatrick  (near  Dumbarton)  where  the 
rampart  of  Antoninus  touches  the  Clyde  ;  not  to  add  that 
the  sea  part  of  these  journeys  might  be  much  longer  if 
the  winds  were  adverse.  News  could  be  carried  not 
much  faster  than  an  official  could  travel,  whereas  Britain 
is,  by  the  electric  telegraph,  in  hourly  communication 
with  every  part  of  India :  and  the  difference  in  speed 
between  the  movement  of  an  army  and  that  of  a  traveller 
was,  of  course,  greater  in  ancient  times  than  it  is  now. 

Thus,  for  the  purposes  both  of  war  and  of  administra- 
tion, England  is  better  placed  than  Rome  was  as  respects 


ROMAN  AXD  BRITISH   EM  MR  lis  7 

those  outlying  parts  of  the  Roman  Empire  which  were 
"most  exposed  to  attack.  Dangers  are  more  quickly 
known  at  head  quarters;  troops  can  reach  the  threa- 
tened frontier  in  a  shorter  time ;  errors  in  policy  can  be 
more  adequately  corrected,  because  explanations  can  be* 
asked,  and  blundering  officials  can  be  more  promptly 
dismissed.  Nevertheless  the  remoteness  of  India  has 
had  results  of  the  highest  moment  in  making  her  rela- 
tion to  England  far  less  close  than  was  that  of  Rome 
to  the  provinces. 

This  point  will  be  considered  presently.  Meantime 
our  comparison  may  begin  with  the  points  in  which  the 
two  Empires  resemble  and  illustrate  one  another.  The 
first  of  these  turns  upon  the  circumstances  of  their  re- 
spective origins. 

Empire  is  retained,  says  a  famous  maxim,  by  the  same 
arts  whereby  it  was  won.  Some  Empires  have  been 
won  easily.  Spain  acquired  hers  through  the  pertinacity 
and  daring  of  a  Genoese  sailor.  She  had  comparatively 
little  righting  to  do,  for  the  only  opponents  she  encoun- 
tered, who  added  to  valour  some  slight  tincture  of  civili- 
zation, were  the  Mexicans. 

Russia  has  met  with  practically  no  resistance  in  occu- 
pying her  vast  territories  in  Northern  Asia ;  though  she 
had  some  sharp  tussles  with  the  nomad  Turkmans,  and 
tedious  conflicts  both  with  Shamyl  and  with  the  Circas- 
sians in  the  Caucasus.  But  both  Rome  and  England 
had  to  fight  long  and  fight  hard  for  what  they  won.  The 
progress  of  Roman  and  British  expansion  illustrates  the 
remark  of  Oliver  Cromwell  that  no  one  goes  so  far  as 
he  who  does  not  know  whither  he  is  going.  Neither 
power  set  out  with  a  purpose  of  conquest,  such  as 
Alexander  the  Great,  and  perhaps  Cyrus,  had  planned 
and  carried  out  before  them.  Just  as  Polybius,  writing 
just  after  the  destruction  of  Carthage  in  b.  c.  146,  already 
perceived  that  Rome  was,  by  the  strength  of  her  govern- 
ment and  the  character  of  her  people,  destined  to  be 
the  dominant  power  of  the  civilized  world,  so  it  was 


8  ROM  \\    AND   BRITISH    UMPIRES 

prophesied  immediately  after  the  first  victories  of 
Clive  that  the  English  would  come  to  be  the  masters 
of  all  India.  Each  nation  was  drawn  on  by  finding 
that  one  conquest  led  almost  inevitably  to  another  be- 
cause restless  border  tribes  had  to  be  subdued,  be- 
cause formidable  neighbours  seemed  to  endanger 
the  safety  of  subjugated  but  often  discontented  pro- 
vinces, because  allies  inferior  in  strength  passed  gradu- 
ally into  the  position  first  of  dependants  and  then  of 
subjects. 

The  Romans  however,  though  they  did  not  start  out 
with  the  notion  of  conquering  even  Italy,  much  less  the 
Mediterranean  world,  came  to  enjoy  fighting  for  its  own 
sake,  and  were  content  with  slight  pretexts  for  it.  For 
several  centuries  they  were  always  more  or  less  at  war 
somewhere.  The  English  went  to  India  as  traders, 
with  no  intention  of  fighting  anybody,  and  were  led 
into  the  acquisition  of  territory  partly  in  order  to  recoup 
themselves  for  the  expensive  efforts  they  had  made  to 
support  their  first  allies,  partly  that  they  might  get 
revenue  for  the  East  India  Company's  shareholders, 
partly  in  order  to  counterwork  the  schemes  of  the 
French,  who  were  at  once  their  enemies  in  Europe  and 
their  rivals  in  the  East.  One  may  find  a  not  too  fanciful 
analogy  to  the  policy  of  the  English  in  the  days  of  Clive, 
when  they  were  drawn  further  and  further  into  Indian 
conflicts  by  their  efforts  to  check  the  enterprises  of 
Dupleix  and  Lally,  in  the  policy  of  the  Romans  when 
they  entered  Sicily  to  prevent  Carthage  from  establish- 
ing- her  control  over  it.  In  both  cases  an  effort  which 
seemed  self-protective  led  to  a  long  series  of  wars  and 
annexations. 

Rome  did  not  march  so  swiftly  from  conquest  to  con- 
quest as  did  England.  Not  to  speak  of  the  two  cen- 
turies during  which  she  was  making  herself  supreme  in 
Italy,  she  began  to  conquer  outside  its  limits  from  the 
opening  of  the  First  Punic  War  in  B.  r.  264,  and  did 
not  acquire  Egypt  till  i;.  c.  30,  and  South  Britain  till 


ROMAN  AXD  BRITISH  EMPIRES  9 

A.  d.  43-85  l.  Her  Eastern  conquests  were  all  the  easier 
because  Alexander  the  Great's  victories,  and  the  wars 
waged  by  his  successors,  had  broken  up  and  denation- 
alized the  East,  much  as  the  Mogul  conquerors  after- 
wards paved  the  way  for  the  English  in  India.  England's 
first  territorial  gains  were  won  at  Plassy  in  a.  d.  1757  2 : 
her  latest  acquisition  was  the  occupation  of  Mandalay  in 
1885.  Her  work  was  done  in  a  century  and  a  quarter, 
while  that  of  Rome  took  fully  three  centuries.  But  Eng- 
land had  two  great  advantages.  Her  antagonists  were 
immeasurably  inferior  to  her  in  arms  as  well  as  in  dis- 
cipline. As  early  as  a.  d.  1672  the  great  Leibnitz  had  in 
a  letter  to  Lewis  XIV  pointed  out  the  weakness  of  the 
Mogul  Empire ;  and  about  the  same  time  Bernier,  a 
French  physician  resident  at  the  Court  of  Aurungzeb, 
declared  that  20,000  French  troops  under  Conde  or 
Turenne  could  conquer  all  India  3.  A  small  European 
force,  and  even  a  small  native  force  drilled  and  led  by 
Europeans,  was  as  capable  of  routing  huge  Asiatic  ar- 
mies as  the  army  of  Alexander  had  proved  capable  of 
overthrowing  the  immensely  more  numerous  hosts  of 
Darius  Codomannus.  Moreover,  the  moment  when  the 
English  appeared  on  the  scene  was  opportune.  The 
splendid  Empire  of  Akbar  was  crumbling  to  pieces.  The 
Mahratta  confederacy  had  attained  great  military  power, 
but  at  the  battle  of  Paniput,  in  1761,  it  received  from  the 
Afghans  under  Ahmed  Shah  Durani  a  terrific  blow  which 
for  the  time  arrested  its  conquests.  Furthermore,  India, 
as  a  whole,  was  divided  into  numerous  principalities, 
the  feeblest  of  which  lay  on  the  coasts  of  the  Bay  of  Ben- 
gal. These  principalities  were  frequently  at  war  with  one 
another,  and  glad  to  obtain  European  aid  in  their  strife. 

1  Dacia  was  taken  by  Trajan  in  a.d.  107,  and  lost  in  a.  d.  251.  Mesopotamia 
and  Arabia  Petraca  were  annexed  by  Trajan  about  the  same  time,  but  the  former 
was  renounced  so  soon  afterwards  that  ts  conquest  can  hardly  be  considered  a 
part  of  the  regular  process  of  expansion. 

2  Territorial  authority  may  be  said  to  date  from  the  grant  of  the  Diwanj  in 
1765. 

3  See  the  admirably  clear  and  thoughtful  book  of  Sir  A.  C.  Lya\l,  Hi'se  of  British 
Dominion  in  India,  pp.  52  and  126. 


10  ROUAJH   AXD   BRITISH   EMPIRES 

And  England  had  a  third  advantage  in  the  fact  that  she 
encountered  the  weakest  of  her  antagonists  first.  Had 
she,  in  those  early  days  when  her  forces  were  slender, 
been  opposed  by  the  valour  of  Marathas  or  Sikhs,  in- 
stead of  by  the  feeble  Bengalis  and  Madrassis,  her  ambi- 
tions might  have  been  nipped  in  the  bud.  When  she 
found  herself  confronted  by  these  formidable  foes  she 
had  already  gained  experience  and  had  formed  a  strong 
native  army.  But  when  the  Romans  strove  against  the 
Achaean  League  and  Macedon  they  had  to  fight  troops 
all  but  equal  to  themselves.  When  Carthage  was  their 
antagonist,  they  found  in  Hamilcar  a  commander  equal, 
in  Hannibal  a  commander  superior  to  any  one  they  could 
send  against  him.  These  earlier  struggles  so  trained 
Rome  to  victory  that  her  later  conquests  were  made 
more  easily.  The  triumphs  of  the  century  before  and  the 
century  after  Julius  Caesar  were  won  either  over  Asi- 
atics, who  had  discipline  but  seldom  valour,  or  over  Gauls, 
Iberians,  Germans,  and  Caledonians,  who  had  valour 
but  not  discipline.  Occasional  reverses  were  due  to 
the  imprudence  of  a  general,  or  to  an  extreme  disparity 
of  forces  ;  for,  like  the  English,  the  Romans  did  not  hesi- 
tate to  meet  greatly  superior  numbers.  The  defeat  of 
Crassus  by  the  Parthians  and  the  catastrophe  which 
befel  Varus  in  the  forests  of  Paderborn  find  a  parallel 
in  the  disastrous  retreat  of  the  English  army  from  Cabul 
in  1843.  Except  on  such  rare  occasions  the  supremacy 
of  Roman  arms  was  never  seriously  challenged,  nor  was 
any  great  calamity  suffered  till  the  barbarian  irruption 
into  Italy  in  the  reign  of  Marcus  Aurelius.  A  still  graver 
omen  for  the  future  was  the  overthrow  of  Valerian  by 
the  Persians  in  A.  D.  260.  The  Persians  were  inferior 
in  the  arts  of  civilization  and  probably  in  discipline : 
but  the  composition  of  the  Roman  armies  was  no  longer 
what  it  had  been  three  centuries  earlier,  for  the  peasantry 
of  Italy,  which  had  formed  the  kernel  of  their  strength, 
were  no  longer  available.  As  the  provincial  subjects  be- 
came less  and  less  warlike,  men  from  beyond  the  frontier 


ROMAN  AND   BRITISH    EMPIRES  11 

were  enrolled,  latterly  in  bodies  under  their  native  chiefs 
— Germans,  or  Arabs,  or,  in  still  later  days,  Huns — just 
as  the  native  army  in  British  India,  which  has  now  be- 
come far  more  peaceful  than  it  was  a  century  ago,  is  re- 
cruited by  Pathans  and  Ghurkas  from  the  hills  outside 
British  territory  as  well  as  by  the  most  warlike  among 
the  Indian  subjects  of  the  Crown.  The  danger  of  the 
practice  is  obvious.  Rome  was  driven  to  it  for  want 
of  Roman  fighting-men1.  England  guards  against  its 
risks  by  having  a  considerable  force  of  British  troops 
alongside  her  native  army. 

The  fact  that  their  dominions  were  acquired  by  force 
of  arms  exerted  an  enduring  effect  upon  the  Roman 
Empire  and  continues  to  exert  it  upon  the  British  in 
imprinting  upon  their  rule  in  India  a  permanently  mili- 
tary character.  The  Roman  administration  began  with 
this  character,  and  never  lost  it,  at  least  in  the  frontier 
provinces.  The  governors  were  pro-consuls  or  pro- 
praetors, or  other  officials,  entrusted  with  the  exercise 
of  an  authority  in  its  origin  military  rather  than  civil. 
A  governor's  first  duty  was  to  command  the  troops 
stationed  in  the  province.  The  camps  grew  into  towns, 
and  that  which  had  been  a  group  of  canabae  or  market 
stalls,  a  sort  of  bazaar  for  the  service  of  the  camp,  some- 
times became  a  municipality.  One  of  the  most  efficient 
means  of  unifying  the  Empire  was  found  in  the  bringing 
of  soldiers  born  in  one  part  of  it  to  be  quartered  for  many 
years  together  in  another.  Military  distinction  was  open 
to  every  subject,  and  military  distinction  might  lead  to 
the  imperial  throne.  So  the  English  in  India  are  pri- 
marily soldiers.  True  it  is  that  they  went  to  India  three 
centuries  ago  as  traders,  that  it  was  out  of  a  trading  com- 
pany that  their  power  arose,  and  that  this  trading  com- 
pany did  not  disappear  till  1858.  The  covenanted  civil 
service,  to  which  Give  for  instance  belonged,  began  as  a 
body  of  commercial  clerks.    Nothing  sounds  more  paci- 

1  And  indeed  the  employment  of  these  barbarians  to  resist  the  outer  barbarians 
probably  prolonged  the  life  of  the  Empire. 


12  ROMAN   AND  BRITISH   EMPIRES 

fie.  But  the  men  of  the  sword  very  soon  began  to  eclipse 
the  men  of  the  quill  and  account  book.  Being  in  the  ma- 
jority, they  do  so  still,  although  foi  forty  years  there 
have  been  none  but  petty  frontier  wars.  Society  is  not  in 
India,  as  it  is  in  England,  an  ordinary  civil  society  occu- 
pied with  the  works  and  arts  of  peace,  with  an  extremely 
small  military  element.  It  is  military  society,  military 
first  and  foremost,  though  with  an  infusion  of  civilian 
officials,  and  in  some  towns  with  a  small  infusion  of  law- 
yers and  merchants,  as  well  as  a  still  smaller  infusion  of 
missionaries.  Military  questions  occupy  every  one's 
thoughts  and  talk.  A  great  deal  of  administrative  or 
diplomatic  work  is  done,  and  often  extremely  well  done, 
by  officers  in  civil  employment.  Many  of  the  railways 
are  primarily  strategic  lines,  as  were  the  Roman  roads. 
The  railway  stations  are  often  placed,  for  military  rea- 
sons, at  a  distance  from  the  towns  they  serve :  and  the 
cantonments  where  the  Europeans,  civilians  as  well  as 
soldiers, reside, usually  built  some  way  off  from  the  native 
cities,  have  themselves,  as  happened  in  the  Roman  Em- 
pire, grown  into  regular  towns.  The  traveller  from 
peaceful  England  feels  himself,  except  perhaps  in  Bom- 
bay, surrounded  by  an  atmosphere  of  gunpowder  all  the 
time  he  stays  in  India. 

Before  we  pass  from  the  military  aspects  of  the  com- 
parison let  it  be  noted  that  both  Empires  have  been 
favoured  in  their  extension  and  their  maintenance  by 
the  frontiers  which  Nature  had  provided.  The  Romans, 
when  once  they  had  conquered  Xumidia,  Spain,  and 
Gaul,  had  the  ocean  and  nothing  but  the  ocean  (save 
for  the  insignificant  exception  of  barbarous  Mauretania) 
to  the  west  and  north-west  of  them,  an  awesome  and 
untravelled  ocean,  from  whose  unknown  further  shore 
no  enemy  could  appear.  To  the  south  they  were  de- 
fended by  the  equally  impassable  barrier  of  a  torrid 
and  waterless  desert,  stretching  from  the  Nile  to  the 
Atlantic.  It  was  only  on  the  north  and  east  that  there 
were   frontiers   to  be   defended ;   and   these  two   sides 


ROMAN  AND  BRITISH  EMPIRES  13 

remained  the  quarters  of  clanger,  because  no  natural 
barrier,  arresting  the  progress  of  armies  or  constituting 
a  defensible  frontier,  could  be  found  without  pushing 
all  the  way  to  the  Baltic  in  one  direction  or  to  the  ranges 
of  Southern  Kurdistan,  perhaps  even  to  the  deserts  of 
Eastern  Persia  in  the  other.  The  north  and  the  east 
ultimately  destroyed  Rome.  The  north  sent  in  those 
Teutonic  tribes  which  occupied  the  western  provinces 
and  at  last  Italy  herself,  and  those  Slavonic  tribes  which 
settled  between  the  Danube,  the  Aegean,  and  the 
Adriatic,  and  permeated  the  older  population  of  the 
Hellenic  lands.  Perhaps  the  Emperors  would  have  done 
better  for  the  Empire  (whatever  might  have  been  the 
ultimate  loss  to  mankind)  if,  instead  of  allowing  them- 
selves to  be  disheartened  by  the  defeat  of  Varus,  they  had 
pushed  their  conquests  all  the  way  to  the  Baltic  and  the 
Vistula,  and  turned  the  peoples  of  North  and  Middle 
Germany  into  provincial  Romans.  The  undertaking 
would  not  have  been  beyond  the  resources  of  the  Empire 
in  its  vigorous  prime,  and  would  have  been  remunera- 
tive, if  not  in  money,  at  any  rate  in  the  way  of  providing 
a  supply  of  fighting-men  for  the  army.  So  too  the  Em- 
perors might  possibly  have  saved  much  suffering  to  their 
Romanized  subjects  in  South  Britain  had  they  followed 
up  the  expedition  of  Agricola  and  subdued  the  peoples 
of  Caledonia  and  Ierne,  who  afterwards  became  disagree- 
able as  Picts  and  Scots.  The  east  was  the  home  of  the 
Parthians,  of  the  Persians,  so  formidable  to  the  By- 
zantine Emperors  in  the  days  of  Kobad  and  Chosroes 
Anushirwan,  and  of  the  tribes  which  in  the  seventh  and 
eighth  centuries,  fired  by  the  enthusiasm  of  a  new  faith 
and  by  the  prospect  of  booty,  overthrew  the  Roman 
armies  and  turned  Egypt,  Syria,  Africa,  Spain,  and  ulti- 
mately the  greater  part  of  Asia  Minor  into  Muhamadan 
kingdoms.  Had  Rome  been  menaced  on  the  south  and 
west  as  she  was  generally  menaced  on  the  east  and  some- 
times on  the  north,  her  Empire  could  hardly  have  lived 
so  long.     Had  she  possessed  a  natural  barrier  on  the 


14  IiOUAX  AND  BRITISH   E.Ml'lh'i:s 

cast  like  that  which  the  Sahara  provided  on  the  south 
she  might  have  found  it  easy  to  resist,  and  not  so  very 
hard  even  to  subjugate,  the  fighting  races  of  the  north. 

Far  more  fortunate  has  been  the  position  of  the 
English  in  India.  No  other  of  the  great  countries  of  the 
world  is  protected  by  such  a  stupendous  line  of  natural 
entrenchments  as  India  possesses  in  the  chain  of  the 
Himalayas  from  Attock  and  Peshawur  in  the  west  to 
the  point  where,  in  the  far  east,  the  Tsanpo  emerges 
from  Tibet  to  become  in  Upper  Assam  the  Brahmaputra. 
Not  only  is  this  mountain  mass  the  loftiest  and  most 
impassable  to  be  found  anywhere  on  our  earth ;  it  is 
backed  by  a  wide  stretch  of  high  and  barren  country, 
so  thinly  peopled  as  to  be  incapable  of  constituting 
a  menace  to  those  who  live  in  the  plains  south  of  the 
Himalayas.  And  in  point  of  fact  the  relations,  com- 
mercial as  well  as  political,  of  India  with  Tibet,  and  with 
the  Chinese  who  are  suzerains  of  Tibet,  have  been,  at 
least  in  historical  times,  extremely  scanty.  On  the  east, 
India  is  divided  from  the  Indo-Chinese  peoples,  Talains, 
Burmese  and  Shans,  by  a  belt  of  almost  impenetrable 
hill  and  forest  country :  nor  have  these  peoples  ever 
been  formidable  neighbours.  It  is  only  at  its  north- 
western angle,  between  Peshawur  and  Quetta  (for  south 
of  Quetta  as  far  as  the  Arabian  Sea  there  are  deserts 
behind  the  mountains  and  the  Indus)  that  India  is  vulner- 
able. The  rest  of  the  country  is  protected  by  a  wide 
ocean.  Accordingly  the  masters  of  India  have  had  only 
two  sets  of  foes  to  fear ;  European  maritime  powers  who 
may  arrive  by  sea  after  a  voyage  which,  until  our  own 
time,  was  a  voyage  of  three  or  four  months,  and  land 
powers  who,  coming  from  the  side  of  Turkistan  or  Per- 
sia, may  find  their  way,  as  did  Alexander  the  Great  and 
Nadir  Shah,  through  difficult  passes  into  the  plains  of 
the  Punjab  and  Sindh.  This  singular  natural  isolation 
of  India,  as  it  facilitated  the  English  conquest  by  prevent- 
ing the  native  princes  from  forming  alliances  with  or 
obtaining  help  from  powers  beyond  the  mountains  or  the 


ROMAN  AXD  BRITISH   EMPIRES  15 

sea,  so  has  it  also  enabled  the  English  to  maintain  their 
hold  with  an  army  extraordinarily  small  in  proportion 
to  the  population  of  the  country.  The  total  strength  of 
the  Roman  military  establishment  in  the  days  of  Trajan, 
was  for  an  area  of  some  two  and  a  half  millions  of  square 
miles  and  population  of  possibly  one  hundred  millions, 
between  280,000  and  320,000  men.  Probably  four-fifths 
of  this  force  was  stationed  on  the  Rhine,  the  Danube,  and 
the  Euphrates.  There  were  so  few  in  most  of  the  inner 
provinces  that,  as  some  one  said,  the  nations  wondered 
where  were  the  troops  that  kept  them  in  subjection. 

The  peace  or  '  established  '  strength  of  the  British 
army  in  India  is  nearly  230,000  men,  of  whom  about 
156,000  are  natives  and  74,000  Englishmen.  To  these 
there  may  be  added  the  so-called  '  active  reserve  '  of 
natives  who  have  served  with  the  colours,  about  17,000 
men,  and  about  30,000  European  volunteers.  Besides 
these  there  are  of  course  the  troops  of  the  native  princes, 
estimated  at  about  350,000  men,  many  of  them,  however, 
far  from  effective.  But  as  these  troops,  though  a  source 
of  strength  while  their  masters  are  loyal,  might  under 
altered  circumstances  be  conceivably  a  source  of  danger, 
they  can  hardly  be  reckoned  as  part  of  the  total  force 
disposable  by  the  British  Government.  Recently,  how- 
ever, about  20,000  of  them  have  been  organized  as  spe- 
cial contingents  of  the  British  army,  inspected  and  ad- 
vised by  British  officers,  and  fit  to  take  their  place  with 
regiments  of  the  line. 

It  would  obviously  be  impossible  to  defend  such  widely 
extended  dominions  by  a  force  of  only  230,000  or  250,000 
men,  but  for  the  remoteness  of  all  possibly  danger- 
ous assailants.  The  only  formidable  land  neighbour  is 
Russia,  the -nearest  point  of  whose  territories  in  the 
Pamirs  is  a  good  long  way  from  the  present  British  out- 
posts, with  a  very  difficult  country  between.  The  next 
nearest  is  France  on  the  Mekong  River,  some  200  miles 
from  British  Burma,  though  a  shorter  distance  from 
Native  States  under  British  influence.  As  for  sea  powers, 


16  ROMAN   AXD  BRITISH  EMPIRES 

not  only  is  Europe  a  long  way  off,  but  the  navy  of  Britain 
holds  the  sea.  It  was  by  her  command  of  the  sea  that 
Britain  won  India.  Were  she  to  eease  to  hold  it,  her 
position  there  would  be  insecure  indeed. 

In  another  respect  also  the  sharp  severance  of  India 
from  all  the  surrounding  countries  may  be  deemed  to 
have  proved  a  benefit  to  the  English.  It  has  relieved 
them  largely  if  not  altogether  from  the  temptation  to 
go  on  perpetually  extending  their  borders  by  annexing 
contiguous  territory.  When  they  had  reached  the  natu- 
ral boundaries  of  the  Himalayas  and  the  ranges  of 
Afghanistan,  they  stopped.  Beyond  these  lie  rugged 
and  unprofitable  highlands,  and  still  more  unprofitable 
wildernesses.  In  two  regions  only  was  an  advance  pos- 
sible:  and  in  those  two  regions  they  have  yielded  to 
temptation.  They  have  crossed  the  southern  part  of 
the  Soliman  mountains  into  Baluchistan  in  search  for  a 
more  '  scientific  '  frontier,  halting  for  the  present  on  the 
Amram  range,  north-west  of  Quetta,  where  from  the 
Khojak  heights  the  eve,  ranging  over  a  dark-brown  arid 
plain,  descries  seventy  miles  away  the  rocks  that  hang 
over  Kandahar.  They  moved  on  from  Arakhan  and 
Tenasserim  into  Lower  Burma,  whence  in  1885  they  con- 
quered Upper  Burma  and  proclaimed  their  suzerainty 
over  some  of  the  Shan  principalities  lying  further  to  the 
east.  But  for  the  presence  of  France  in  these  regions, 
which  makes  them  desire  to  keep  Siam  in  existence  as 
a  so-called  '  Buffer  State,'  manifest  destiny  might  pro- 
bably lead  them  ultimately  eastward  across  the  Menam 
and  Mekong  to  Annam  and  Cochin  China. 

The  Romans  too  sought  for  a  scientific  frontier,  and 
hesitated  often  as  to  the  line  they  should  select,  some- 
times pushing  boldly  eastward  beyond  the  Rhine  and 
the  Euphrates,  sometimes  receding  to  those  rivers.  Not 
till  the  time  of  Hadrian  did  they  create  a  regular  system 
of  frontier  defence,  strengthened  at  many  points  by  forti- 
fications, among  which  the  forts  that  lie  along  the 
Roman  Wall  from  the  Tyne  to  the  Solway  are  perhaps 


ROMAN  AND  BRITISH  EMPIRES  17 

the  best  preserved.  So  the  English  wavered  for  a  time 
between  the  line  of  the  Indus  and  that  of  the  Soliman 
range ;  so  in  the  wild  mountain  region  beyond  Kashmir 
they  have,  within  the  last  few  years,  alternately  occupied 
and  retired  from  the  remote  outpost  of  Chitral.  It  has 
been  their  good  fortune  to  have  been  obliged  to  fortify 
a  comparatively  small  number  of  points,  and  all  of  these 
are  on  the  north-west  frontier. 

There  have  been  those  who  would  urge  them  to  occupy 
Afghanistan  and  entrench  themselves  therein  to  resist  a 
possible  Russian  invasion.  But  for  the  present  wiser 
counsels  have  prevailed.  Afghanistan  is  a  more  effective 
barrier  in  the  hands  of  its  own  fierce  tribes  than  it  would 
be  as  a  part  of  British  territory.  A  parallel  may  be 
drawn  between  the  part  it  has  played  of  late  years  and 
that  which  Armenia  played  in  the  ancient  world  from  the 
days  of  Augustus  to  those  of  Heraclius.  Both  countries 
had  been  the  seats  of  short-lived  Empires,  Armenia  in 
the  days  of  Tigranes,  Afghanistan  in  those  of  Ahmed 
Shah.  Both  are  wild  and  rugged  regions,  the  dwelling- 
places  of  warlike  races.  Christian  Armenia  was  hostile 
from  religious  sentiment  to  the  enemies  whom  Rome  had 
to  fear,  the  Persian  Fire-worshippers.  Musulman  Af- 
ghanistan dreads  the  power  of  Christian  Russia.  But 
the  loyalty  or  friendship  of  the  Armenian  princes  was  not 
always  proof  against  the  threats  of  the  formidable  Sas- 
sanids,  and  the  action  of  the  Afghans  is  an  element  of 
uncertainty  and  anxiety  to  the  British  rulers  of  India. 

To  make  forces  so  small  as  those  on  which  Rome  re- 
lied and  those  which  now  defend  British  India  adequate 
for  the  work  they  have  to  do,  good  means  of  communi- 
cation are  indispensable.  It  was  one  of  the  first  tasks 
of  the  Romans  to  establish  such  means.  They  were  the 
great — indeed  one  may  say,  the  only — road  builders  of 
antiquity.  They  began  this  policy  before  they  had  com- 
pleted the  conquest  of  Italy ;  and  it  was  one  of  the  devices 
which  assured  their  supremacy  throughout  the  penin- 
sula. They  followed  it  out  in  Gaul,  Spain,  Africa.  Bntain, 
2 


18  ROM  AX   AND   BRITISH    EMPIRES 

and  the  East,  doing  their  work  so  thoroughly  that  in 
Britain  some  of  the  roads  continued  to  be  the  chief  ave- 
nues of  travel  down  till  the  eighteenth  century.  So  the 
English  have  been  in  India  a  great  engineering  people, 
constructing  lines  of  communication,  first  roads  and 
afterwards  railways,  on  a  scale  of  expenditure  unknown 
to  earlier  ages.  The  potentates  of  elder  days,  Hindu  ra- 
jahs, and  subsequently  Pathans  and  Moguls,  with  other 
less  famous  Musulman  dynasties,  have  left  their  memo- 
rials in  temples  and  mosques,  in  palaces  and  tombs.  The 
English  are  commemorating  their  sway  by  railway  works, 
■by  tunnels  and  cuttings,  by  embankments  and  bridges.  If 
India  were  to  relapse  into  barbarism  the  bridges,  being 
mostly  of  iron,  would  after  a  while  perish,  and  the  em- 
bankments would  in  time  be  swept  away  by  torrential 
rains,  but  the  rock-cuttings  and  the  tunnels  would  re- 
main, as  the  indestructible  paving-stones  of  the  Roman 
roads,  and  majestic  bridges,  like  the  Pont  du  Gard  in 
Languedoc,  remain  to  witness  to  the  skill  and  thorough- 
ness with  which  a  great  race  did  its  work. 

The  opening  up  of  India  by  railroads  suggests  not  a  few 
interesting  questions  which,  however,  I  can  do  no  more 
than  indicate  here.  Railroad  construction  has  imposed 
upon  the  Indian  exchequer  a  strain  all  theheavierbecause 
some  lines,  especially  those  on  the  north-west  frontier, 
having  been  undertaken  from  strategic  rather  than  com- 
mercial motives,  will  yield  no  revenue  at  all  proportion- 
ate to  their  cost.  It  has  been  suggested  that  although 
railroads  were  meant  to  benefit  the  peasantry,  they  may 
possibly  have  increased  the  risk  of  famine,  since  they  in- 
duce the  producer  to  export  the  grain  which  was  for- 
merly locally  stored  up  in  good  years  to  meet  the  scarcity 
of  bad  years.  The  comparative  quickness  with  which 
food  can  be  carried  by  rail  into  a  famine  area  does  not — 
so  it  is  argued — compensate  for  the  loss  of  these  domes- 
tic reserves.  Railways,  bringing  the  numerous  races 
that  inhabit  India  into  a  closer  touch  with  one  another 
than  was  possible  before,  are  breaking  down,  slowly  but 


HO  MAN  AND  BRITISH    EMPIRES  19 

surely,  the  demarcations  of  caste,  and  are  tending  to- 
wards an  assimilation  of  the  jarring  elements,  racial  and 
linguistic,  as  well  as  religious,  which  have  divided  India 
into  a  number  of  distinct,  and  in  many  cases  hostile, 
groups.  Centuries  may  elapse  before  this  assimilation 
can  become  a  source  of  political  danger  to  the  rulers  of 
the  country :  yet  we  discern  the  beginnings  of  the  pro- 
cess now,  especially  in  the  more  educated  class.  The 
Roman  roads,  being  highways  of  commerce  as  well  as 
of  war,  contributed  powerfully  to  draw  together  the 
peoples  whom  Rome  ruled  into  one  imperial  nationality. 
But  this  was  a  process  which,  as  we  shall  presently  note, 
was  for  Rome  an  unmixed  gain,  since  it  strengthened 
the  cohesion  of  an  Empire  whose  inhabitants  had  every 
motive  for  loyalty  to  the  imperial  Government,  if  not 
always  to  the  particular  sovereign.  The  best  efforts 
of  Britain  may  not  succeed  in  obtaining  a  similar  attach- 
ment from  her  Indian  subjects,  and  their  union  into  a 
body  animated  by  one  national  sentiment  might  become 
an  element  of  danger  against  which  she  has  never  yet 
been  required  to  take  precautions. 

The  excellence  of  the  highways  of  communication 
provided  by  the  wise  energy  of  the  Romans  and  of  the 
English  has  contributed  not  only  to  the  easier  defence 
of  the  frontiers  of  both  Empires,  but  also  to  the  main- 
tenance of  a  wonderfully  high  standard  of  internal 
peace  and  order.  Let  any  one  think  of  the  general  state 
of  the  ancient  world  before  the  conquests  of  Rome,  and 
let  him  then  think  of  the  condition  not  merely  of  India 
after  the  death  of  the  Emperor  Aurungzeb,  but  of  the 
chief  European  countries  as  they  stood  in  the  seven- 
teenth century,  if  he  wishes  to  appreciate  what  Rome  did 
for  her  subjects,  or  what  England  has  done  in  India.  In 
some  parts  of  Europe  private  war  still  went  on  two  hun- 
dred and  fifty  years  ago.  Almost  everywhere  robber 
bands  made  travelling  dangerous  and  levied  tribute  upon 
the  peasantry.  Even  in  the  eighteenth  century,  and 
even  within  our  own  islands,  Rob  Rov  raided  the  farm- 


20  ROMAN   AND   BRITISH   EMPIRES 

ers  of  Lennox,  and  landlords  in  Connaught  fought 
pitched  battles  with  one  another  at  the  head  of  their  re- 
tainers. Even  a  century  ago  the  coasts  of  the  Mediter- 
ranean were  ravaged  by  Barbary  pirates,  and  brigand- 
age reigned  unchecked  through  large  districts  of  Italy. 
But  in  the  best  days  of  the  Roman  Empire  piracy 
was  unknown ;  the  peasantry  were  exempt  from  all  ex- 
actions except  those  of  the  tax-gatherer ;  and  the  great 
roads  were  practically  safe  for  travellers.  Southern  and 
western  Europe,  taken  as  a  whole,  would  seem  to  have 
enjoyed  better  order  under  Hadrian  and  the  Antonines 
than  was  enjoyed  again  until  nearly  our  own  times.  This 
was  the  more  remarkable  because  the  existence  of  sla- 
very must  have  let  loose  upon  society,  in  the  form  of  run- 
away slaves,  a  good  many  dangerous  characters.  More- 
over, there  remained  some  mountainous  regions  where 
the  tribes  had  been  left  practically  to  themselves  under 
their  own  rude  customs.  These  enclaves  of  barbarism 
within  civilized  territory,  such  as  was  Albania,  in  the  cen- 
tral mountain  knot  of  which  no  traces  of  Roman  building 
have  been  found,  and  the  Isaurian  country  in  Asia  Minor, 
and  possibly  the  Cantabrian  land  on  the  borders  of  south- 
western Gaul  and  northern  Spain,  where  the  Basque 
tongue  still  survives,  do  not  appear  to  have  seriously  in- 
terfered with  the  peace  and  well-being  of  the  settled 
population  which  dwelt  around  them,  probably  because 
the  mountaineers  knew  that  it  was  only  by  good  be- 
haviour that  they  could  obtain  permission  to  enjoy  the 
measure  of  independence  that  had  been  left  to  them. 
The  parts  of  provincial  Africa  which  lay  near  the  desert 
were  less  orderly,  because  it  was  not  easy  to  get  behind 
the  wild  tribes  who  had  the  Sahara  at  their  back. 

The  internal  peace  of  the  Roman  Empire  was,  how- 
ever, less  perfect  than  that  which  has  been  established 
within  the  last  sixty  years  in  India.  Nothing  surprises 
the  visitor  from  Europe  so  much  as  the  absolute  confi- 
dence with  which  he  finds  himself  travelling  unprotected 
across  this  vast  country,  through  mountains  and  jungles, 


ROMAN  AND  BRITISH  EMPIRES  21 

among  half  savage  tribes  whose  languages  he  does  not 
know,  and  that  without  seeing,  save  at  rare  intervals,  any 
sign  of  European  administration.  Nor  is  this  confined 
to  British  India.  It  is  almost  the  same  in  Native  States. 
Even  along  the  lofty  forest  and  mountain  frontier  that 
separates  the  native  (protected)  principality  of  Sikkim 
from  Nepal — the  only  really  independent  Indian  State — 
an  Englishman  may  journey  unarmed  and  alone,  except 
for  a  couple  of  native  attendants,  for  a  week  or  more. 
When  he  asks  his  friends  at  Darjiling,  before  he  starts, 
whether  he  ought  to  take  a  revolver  with  him,  they  smile 
at  the  question.  There  is  not  so  complete  a  security 
for  native  travellers,  especially  in  Native  States,  for  here 
and  there  bands  of  brigands  called  Dacoits  infest  the 
tracks,  and  rob,  sometimes  the  wayfarer,  sometimes  the 
peasant,  escaping  into  the  recesses  of  the  jungle  when 
the  police  are  after  them.  But  dacoity,  though  it  occa- 
sionally breaks  out  afresh  in  a  few  districts,  has  become 
much  less  frequent  than  formerly.  The  practice  of 
Thuggi  which  seventy  years  ago  still  caused  many  mur- 
ders, has  been  extirpated  by  the  unceasing  energy  of 
British  officers.  Crimes  of  violence  show  a  percentage 
to  the  population  which  appears  small  when  one  con- 
siders how  many  wild  tribes  remain.  The  native  of 
course  suffers  from  violence  more  frequently  than  does 
the  European,  whose  prestige  of  race,  backed  by  the 
belief  that  punishment  will  surely  follow  on  any  injury 
done  to  him,  keeps  him  safe  in  the  wildest  districts  *. 

I  have  referred  to  the  enclaves  within  the  area  of  the 
Roman  Empire  where  rude  peoples  were  allowed  to  live 
after  their  own  fashion  so  long  as  they  did  not  disturb 
the  peace  of  their  more  civilized  neighbours.  One  finds 
the  Indian  parallel  to  these  districts,  not  so  much  in  the 
Native  States,  for  these  are  often  as  advanced  in  the 

1  An  incident  like  the  murder  in  1889  of  the  British  Resident  at  Manipur,  a  small 
Protected  State  in  the  hill  country  between  Assam  and  Burma,  is  so  rare  and  ex- 
cites so  much  surprise  and  horror  as  to  be  the  best  proof  of  the  general  tranquil- 
lity. In  that  case  there  had  been  some  provocation,  though  not  on  the  part  of  the 
Resident  himself,  an  excellent  man  of  conciliatory  temper. 


22  ROMAX    AND   BRITISH    EMPIRES 

arts  of  life,  and,  in  a  very  few  instances,  almost  as  well 
administered,  as  British  territory,  but  rather  in  the  hill 
tribes,  which  in  parts  of  central,  of  north-western,  and 
of  southern  India,  have  retained  their  savage  or  semi- 
savage  customs,  under  their  own  chiefs,  within  the  pro- 
vinces directly  subject  to  the  Crown.  These  tribes,  as 
did  the  Albanians  and  Basques,  cleave  to  their  primitive 
languages,  and  cleave  also  to  their  primitive  forms  of 
ghost-worship  or  nature-worship,  though  Hinduism  is 
beginning  to  lay  upon  them  its  tenacious  grasp.  Of 
one  another's  lives  and  property  they  are  not  very  care- 
ful. But  they  are  awed  by  the  European  and  leave  him 
unmolested. 

The  success  of  the  British,  like  that  of  the  Roman 
administration  in  securing  peace  and  good  order,  has 
been  due,  not  merely  to  a  sense  of  the  interest  which  a 
government  has  in  maintaining  conditions  which,  be- 
cause favourable  to  industry  are  favourable  also  to  re- 
venue, but  also  to  the  high  ideal  of  the  duties  of  a  ruler 
which  both  nations  have  set  before  themselves.  Earlier 
Empires,  like  those  of  the  Persian  Achaemenids  or  of 
the  successors  of  Alexander,  had  been  content  to  tax 
their  subjects  and  raise  armies  from  them.  No  monarch, 
except  perhaps  some  of  the  Ptolemies  in  Egypt,  seems 
to  have  set  himself  to  establish  a  system  from  which  his 
subjects  would  benefit.  Rome,  with  larger  and  higher 
views,  gave  to  those  whom  she  conquered  some  compen- 
sations in  better  administration  for  the  national  inde- 
pendence she  extinguished.  Her  ideals  rose  as  she  ac- 
quired experience,  and  as  she  came  to  feel  the  magni- 
ficence of  her  position.  Even  under  the  Republic  at- 
tempts were  made  to  check  abuses  of  power  on  the  part 
of  provincial  governors.  The  proceedings  against  Ver- 
res,  which  we  know  so  well  because  Cicero's  speeches 
against  that  miscreant  have  been  preserved,  are  an  in- 
stance of  steps  taken  in  the  interests  of  a  province  whose 
discontent  was  so  little  likely  to  harm  Rome  that  no 
urgent  political  necessity  prescribed  them.     Those  pro- 


ROMAN  AND  BRITISH   EMPIRES  23 

ceedings  showed  how  defective  was  the  machinery  for 
controlling  or  punishing  a  provincial  governor ;  and  it  is 
clear  enough  that  a  great  deal  of  extortion  and  misfea- 
sance went  on  under  proconsuls  and  propraetors  in  the 
later  days  of  the  Republic,  to  the  enrichment,  not  only  of 
those  functionaries,  but  of  the  hungry  swarm  who  fol- 
lowed them,  including  men  who,  like  the  poet  Catullus, 
were  made  for  better  things1.  With  the  establishment 
of  a  monarchy  administration  improved.  The  Emperor 
had  a  more  definite  responsibility  for  securing  the  wel- 
fare and  contentment  of  the  provinces  than  had  been  felt 
by  the  Senate  or  the  jurors  of  the  Republic,  swayed  by 
party  interest  or  passion,  not  to  speak  of  more  sordid 
motives.  He  was,  moreover,  able  to  give  effect  to  his 
wishes  more  promptly  and  more  effectively.  He  could 
try  an  incriminated  official  in  the  way  he  thought  best, 
and  mete  out  appropriate  punishment.  It  may  indeed  be 
said  that  the  best  proof  of  the  incompetence  of  the  Re- 
publican system  for  the  task  of  governing  the  world,  and 
of  the  need  for  the  concentration  of  powers  in  a  single 
hand,  is  to  be  found  in  the  scandals  of  provincial  adminis- 
tration, scandals  which,  so  far  as  we  can  judge,  could  not 
have  been  remedied  without  a  complete  change  either  in 
the  tone  and  temper  of  the  ruling  class  at  Rome,  or  in  the 
ancient  constitution  itself. 

On  this  point  the  parallel  with  the  English  in  India  is 
interesting,  dissimilar  as  the  circumstances  were.  The 
English  administration  began  with  extortions  and  cor- 
ruptions. Officials  were  often  rapacious,  sometimes 
unjust,  in  their  dealings  with  the  native  princes.  But 
the  statesmen  and  the  public  opinion  of  England,  even 
in  the  latter  half  of  the  eighteenth  century,  had  higher 
standards  than  those  of  Rome  in  the  days  of  Sulla  and 
Cicero,  while  the  machinery  which  the  House  of  Com- 
mons provided  for  dealing  with  powerful  offenders  was 

1  Poems  x  and  xxviii.  It  is  some  comfort  to  know  that  Catullus  obtained  in 
Bithynia  only  themes  for  some  of  his  most  charming  verses  (see  poems  iv  and 
xlvi).     Gains  would  probably  have  been  ill-gotten. 


24  ROMAS    AND   BRITISH   EMPIRES 

more  effective  than  the  Roman  method  of  judicial  pro- 
ceedings  before  tribunals  which  could  be,  and  frequently 
were,  bribed.  The  first  outbreak  of  greed  and  corrup- 
tion in  Bengal  was  dealt  with  by  the  strong  hand  of 
Clive  in  1765.  It  made  so  great  an  impression  at  home 
as  to  give  rise  to  a  provision  in  a  statute  of  1773,  making 
offences  against  the  provisions  of  that  Act  or  against  the 
natives  of  India,  punishable  by  the  Court  of  King's  Bench 
in  England.  By  Pitt's  Act  of  1784,  a  Special  Court,  con- 
sisting of  three  judges,  four  peers,  and  six  members  of 
the  House  of  Commons,  was  created  for  the  trial  in  Eng- 
land of  offences  committed  in  India.  This  singular  tribu- 
nal, which  has  been  compared  with  the  qitacstio  pcrpciita 
(de  pecuniis  repetundis)  of  Senators  created  by  a  Roman 
statute  of  b.  c.  149  to  try  offences  committed  by  Roman 
officials  against  provincials,  has  never  acted,  or  even  been 
summoned  l.  Soon  after  it  came  the  famous  trial  which 
is  more  familiar  to  Englishmen  than  any  other  event  in 
the  earlier  relations  of  England  and  India.  The  impeach- 
ment of  Warren  Hastings  has  often  been  compared  with 
the  trial  of  Verres,  though  Hastings  was  not  only  a  far 
more  capable,  but  a  far  less  culpable  man.  Hastings, 
like  Verres,  was  not  punished.  But  the  proceedings 
against  him  so  fixed  the  attention  of  the  nation  upon  the 
administration  of  India  as  to  secure  for  wholesome 
principles  of  conduct  a  recognition  which  was  never 
thereafter  forgotten.  The  Act  of  1784  in  establishing 
a  Board  of  Control  responsible  to  Parliament  found  a 
means  both  for  supervising  the  behaviour  of  officials  and 
for  taking  the  large  political  questions  which  arose  in 
India  out  of  the  hands  of  the  East  India  Company.  This 
Board  continued  till  India  was  placed  under  the  direct 
sway  of  the  British  Crown  in  1858.  At  the  same  time 
the  appointment  of  Governors-General  who  wore  mostly 
men  of  wealth,  and  always  men  of  rank  and  position  at 
home,  provided  a  safeguard  against  such  misconduct  as 

'  See  Sir  C.  P.  Ilbcrt's  Government  of  India,  p.  68.    The  provision  creating  this 
Court  has  never  been  repealed. 


ROMAN  AND  BRITISH  EMPIRES  25 

the  proconsuls  under  the  Roman  Republic  had  been 
prone  to  commit.  These  latter  had  little  to  fear  from 
prosecution  when  their  term  of  office  was  over,  and  the 
opinion  of  their  class  was  not  shocked  by  offences  which 
would  have  fatally  discredited  an  English  nobleman. 
The  standard  by  which  English  public  opinion  judges 
the  behaviour  of  Indian  or  Colonial  officials  has,  on  the 
whole,  risen  during  the  nineteenth  century;  and  the  idea 
that  the  government  of  subject-races  is  to  be  regarded 
as  a  trust  to  be  discharged  with  a  sense  of  responsibility 
to  God  and  to  humanity  at  large  has  become  generally 
accepted.  Probably  the  action  of  the  Emperors,  or  at 
least  of  such  men  as  Trajan  and  his  three  successors, 
raised  the  standard  of  opinion  in  the  Roman  Empire 
also.  It  was,  however,  not  so  much  to  that  opinion  as  to 
their  sovereign  master  that  Roman  officials  were  respon- 
sible. The  general  principles  of  policy  which  guided  the 
Emperors  were  sound,  but  how  far  they  were  applied  to 
check  corruption  or  oppression  in  each  particular  case 
is  a  matter  on  which  we  are  imperfectly  informed.  Under 
an  indolent  or  vicious  Emperor,  a  governor  who  had 
influence  at  Court,  or  who  remitted  the  full  tribute  punc- 
tually, may  probably  have  sinned  with  impunity. 

The  government  of  India  by  the  English  resembles 
that  of  her  provinces  by  Rome  in  being  thoroughly  des- 
potic. In  both  cases,  whatever  may  have  been  done 
for  the  people,  nothing  was  or  is  done  by  the  people. 
There  was  under  Rome,  and  there  is  in  British  India,  no 
room  for  popular  initiative,  or  for  popular  interference 
with  the  acts  of  the  rulers,  from  the  Viceroy  down  to 
a  district  official.  For  wrongs  cognizable  by  the  courts 
of  law,  the  courts  of  law  were  and  are  open,  doubtless 
more  fully  open  in  India  than  they  were  in  the  Roman 
Empire.  But  for  errors  in  policy  or  for  defects  in  the 
law  itself,  the  people  of  a  province  had  no  remedy  avail- 
able in  the  Roman  Empire  except  through  petition  to 
the  sovereign.  Neither  is  there  now  in  India  any  re- 
course open  to  the  inhabitants  except  an  appeal  to  the 


26  IWMA.S    AM)   BRITISH    EMPIRES 

Crown  or  to  Parliament,  a  Parliament  in  which  the  In- 
dian subjects  of  the  Crown  have  not  been,  and  cannot  be, 
represented.  This  was,  and  is,  by  the  nature  of  the  case, 
inevitable. 

In  comparing  the  governmental  systems  of  the  two 
Empires,  it  is  hardly  necessary  to  advert  to  such  differ- 
ences as  the  fact  that  India  is  placed  under  a  Viceroy  to 
whom  all  the  other  high  functionaries,  Governors,  Lieu- 
tenant-Governors and  Chief  Commissioners,  are  subor- 
dinated, whereas,  in  the  Roman  world  every  provincial 
governor  stood  directly  under  the  Emperor.  Neither 
need  one  dwell  upon  the  position  in  the  English  system 
of  the  Secretary  of  State  for  India  in  Council  as  a  mem- 
ber of  the  British  Cabinet.  Such  details  do  not  affect 
the  main  point  to  which  I  now  come. 

The  territories  conquered  by  the  Romans  were  of 
three  kinds.  Some,  such  as  Egypt,  Macedonia,  and  Pon- 
tus,  had  been,  under  their  own  princes,  monarchies  prac- 
tically despotic.  In  these,  of  course,  there  could  be  no 
question  of  what  we  call  popular  government.  Some 
had  been  tribal  principalities,  monarchic  or  oligarchic, 
such  as  those  among  the  Iceni  and  Brigantes  in  Britain, 
the  Arverni  in  Gaul,  the  Cahtabrian  mountaineers  in 
Spain.  Here,  again,  free  institutions  had  not  existed 
before,  and  could  hardly  have  been  created  by  the  con- 
queror. The  third  kind  consisted  of  small  common- 
wealths, such  as  the  Greek  cities.  These  were  fitted  for 
self-government,  which  indeed  they  had  enjoyed  before 
they  were  subjected  by  Rome.  Very  wisely,  municipal 
self-government  was  to  a  large  extent  left  to  them  by  the 
Emperors  down  till  the  time  of  Justinian.  It  was  more 
complete  in  some  cities  than  in  others  ;  and  it  was  in 
nearly  all  gradually  reduced  by  the  equalizing  pressure  of 
the  central  authority.  But  they  were  all  placed  under  the 
governor  of  the  province ;  most  of  them  paid  taxes,  and 
in  most  both  the  criminal  and  the  higher  civil  jurisdiction 
were  in  the  hands  of  imperial  officials.  Of  the  introduc- 
tion of  any  free  institutions  for  the  empire  at  large,  or 


ROMAN  AND  BRITISH   EMPIRES  27 

even  for  any  province  as  a  whole,  there  seems  never  to 
have  been  any  question.  Among  the  many  constitutional 
inventions  we  owe  to  the  ancient  world  representative 
government  finds  no  place.  A  generation  before  the  fall 
of  the  Republic,  Rome  had  missed  her  opportunity  when 
the  creation  of  such  a  system  was  most  needed  and  might 
have  been  most  useful.  After  her  struggle  against  the 
league  of  her  Italian  allies,  she  consented  to  admit  them 
to  vote  in  her  own  city  tribes,  instead  of  taking  what 
seems  to  us  moderns  the  obvious  expedient  of  allowing 
them  to  send  delegates  to  an  assembly  which  should 
meet  in  Rome.  So  it  befell  that  monarchy  and  a  city 
republic  or  confederation  of  such  republics  remained 
the  only  political  forms  known  to  antiquity  1. 

India  is  ruled  despotically  by  the  English,  not  merely 
because  they  found  her  so  ruled,  but  because  they  con- 
ceive that  no  other  sort  of  government  would  suit  a  vast 
population  of  different  races  and  tongues,  divided  by  the 
religious  animosities  of  Hindus  and  Musulmans,  and 
with  no  sort  of  experience  of  self-government  on  a  scale 
larger  than  that  of  the  Village  Council.  No  more  in 
India  than  in  the  Roman  Empire  has  there  been  any 
question  of  establishing  free  institutions  either  for  the 
country  as  a  whole,  or  for  any  particular  province.  But 
the  English,  like  the  Romans,  have  permitted  such  self- 
government  as  they  found  to  subsist.  It  subsists  only 
in  the  very  rudimentary  but  very  useful  form  of  the  Vil- 

1  The  nearest  approach  to  any  kind  of  provincial  self-government  and  also  the 
nearest  approach  to  a  representative  system  was  made  in  the  Provincial  Councils 
which  seem  from  the  time  of  Augustus  down  to  the  fifth  century  to  have  existed 
in  all  or  nearly  all  the  provinces.  They  consisted  of  delegates  from  the  cities  of 
each  province,  and  met  annually  in  some  central  place,  where  stood  the  temple 
or  altar  to  Rome  and  Augustus.  They  were  presided  over  by  the  priest  of  these 
divinities,  and  their  primary  functions  were  to  offer  sacrifices,  provide  for  the  ex- 
pense of  the  annual  games,  and  elect  the  priest  for  next  year.  However  they  seem 
to  have  also  passed  resolutions,  such  as  votes  of  thanks  to  the  outgoing  priest  or 
to  a  departing  governor,  and  to  have  transmitted  requests  or  inquiries  to  the  Em- 
peror. Sometimes  they  arranged  for  the  prosecution  of  a  governor  who  had  mis- 
governed them  .  but  on  the  whole  their  functions  were  more  ceremonial  and  or- 
namental than  practically  important  ;  nor  would  the  emperors  have  suffered  them 
to  exert  any  real  power,  though  they  were  valued  as  useful  vehicles  of  provincial 
opinion  (see  Marquardt,  Rdmiscke  Staatsverwattung,  vol.  i,  and  an  article  in  Eng. 
Hist.  Review  for  April,  18^3,  by  Mr.  E.  G.  Hardy). 


28  ROMAN  AND  BRITISH  EMPIRES 

lage  Council  just  referred  to,  called  in  some  parts  of 
India  the  Panchayet  or  body  of  five.  Of  late  years  muni- 
cipal constitutions,  resembling  at  a  distance  those  of 
English  boroughs,  have  been  given  to  some  of  the  larger 
cities  as  a  sort  of  experiment,  for  the  sake  of  training 
the  people  to  a  sense  of  public  duty,  and  of  relieving  the 
provincial  government  of  local  duties.  So  far  the  experi- 
ment has  in  most  cities  been  only  a  moderate  success. 
The  truth  is  that,  though  a  few  intelligent  men,  edu- 
cated in  European  ideas,  complain  of  the  despotic  power 
of  the  Anglo-Indian  bureaucracy,  the  people  of  India 
generally  do  not  wish  to  govern  themselves.  Their  tradi- 
tions, their  habits,  their  ideas,  are  all  the  other  way,  and 
dispose  them  to  accept  submissively  any  rule  which  is 
strong  and  which  neither  disturbs  their  religion  and  cus- 
toms nor  lays  too  heavy  imposts  upon  them. 

Here  let  an  interesting  contrast  be  noted.  The  Roman 
Emperors  were  despots  at  home  in  Italy,  almost  as  much, 
and  ultimately  quite  as  much,  as  in  the  provinces.  The 
English  govern  their  own  country  on  democratic,  India 
on  absolutist  principles.  The  inconsistency  is  patent  but 
inevitable.  It  affords  an  easy  theme  for  declamation 
when  any  arbitrary  act  of  the  Indian  administration  gives 
rise  to  complaints, and  it  may  fairly  be  used  as  the  founda- 
tion for  an  argument  that  a  people  which  enjoys  freedom 
at  home  is  specially  bound  to  deal  justly  and  consider- 
ately with  those  subjects  to  whom  she  refuses  a  like  free- 
dom. But  every  one  admits  in  his  heart  that  it  is  impos- 
sible to  ignore  the  differences  which  make  one  group  of 
races  unfit  for  the  institutions  which  have  given  energy 
and  contentment  to  another  more  favourably  placed. 

A  similar  inconsistency  presses  on  the  people  of  the 
United  States  in  the  Philippine  Isles.  It  is  a  more 
obtrusive  inconsistency  because  it  has  come  more  ab- 
ruptly, because  it  has  come,  not  by  the  operation  of  a 
long  series  of  historical  causes,  but  by  (he  sudden  and 
little  considered  action  of  the  American  Republic  itself. 
and  because  the  American   Republic  has   proclaimed, 


ROMAS  AXD   BRITISH   EMPIRES  29 

far  more  loudly  and  clearly  than  the  English  have  ever 
done,  the  principle  contained  in  the  Declaration  of  In- 
dependence that  the  consent  of  the  governed  is  the  only 
foundation  of  all  just  government.  The  Americans  will 
doubtless  in  time  either  reconcile  themselves  to  their 
illogical  position  or  alter  it.  But  for  the  present  it  gives 
to  thoughtful  men  among  them  visions  of  mocking 
spirits,  which  the  clergy  are  summoned  to  exorcize  by 
dwelling  upon  the  benefits  which  the  diffusion  of  a  pure 
faith  and  a  commercial  civilization  will  confer  upon  the 
lazy  and  superstitious  inhabitants  of  these  tropical  isles. 
Subject  to  the  general  principle  that  the  power  of 
the  Emperor  was  everywhere  supreme  and  absolute,  the 
Romans  recognized,  at  least  in  the  earlier  days  of  the 
Empire,  considerable  differences  between  the  methods 
of  administering  various  provinces.  A  distinction  was 
drawn  between  the  provinces  of  the  Roman  people,  to 
which  proconsuls  or  propraetors  were  sent,  and  the  pro- 
vinces of  Caesar,  placed  under  the  more  direct  cqntrol 
of  the  Emperor,  and  administered  in  his  name  by  an 
official  called  the  pracscs  or  legatus  Cacsaris,  or  sometimes 
(as  was  the  case  in  Judaea,  at  the  time  when  it  was  ruled 
by  Pontius  Pilate)  by  a  procurator,  an  officer  primarily 
financial,  but  often  entrusted  with  the  powers  of  a  pracscs. 
Egypt  received  special  treatment  because  the  population 
was  turbulent  and  liable  to  outbursts  of  religious  passion, 
and  because  it  was  important  to  keep  a  great  cornfield  of 
the  Empire  in  good  humour.  These  distinctions  between 
one  province  and  another  tended  to  vanish  as  the  ad- 
ministrative system  of  the  whole  Empire  grew  better 
settled  and  the  old  republican  forms  were  forgotten.  Still 
there  were  always  marked  differences  between  Britain, 
for  instance,  at  the  one  end  of  the  realm  and  Syria  at  the 
other.  So  there  were  all  sorts  of  varieties  in  the  treat- 
ment of  cities  and  tribes  which  had  never  been  conquered, 
but  passed  peaceably  through  alliance  into  subjection. 
Some  of  the  Hellenic  cities  retained  their  republican 
institutions  till  far  down  in  imperial  times.    Distinctions 


30  ROMA*    AND   BRITISH    EMPIRES 

not  indeed  similar,  yet  analogous,  have  existed  between 
the  different  parts  of  British  India.  There  is  the  old  dis- 
tribution of  provinces  into  Regulation  and  Non-Regula- 
tion. The  name  '  Province,'  one  may  observe  in  passing, 
a  name  unknown  elsewhere  in  the  dominions  of  Bri- 
tain 1  (though  a  recent  and  vulgar  usage  sometimes  ap- 
plies it  to  the  parts  of  England  outside  of  London)  except 
as  a  relic  of  French  dominion  in  Canada,  bears  witness  to 
an  authority  which  began,  as  in  Canada,  through  con- 
quest. Though  the  names  of  Regulation  and  Non-Regu- 
lation provinces  are  now  no  longer  used,  a  distinction 
remains  between  the  districts  to  the  higher  posts  in  which 
none  but  members  of  the  covenanted  service  are  ap- 
pointed, and  those  in  which  the  Government  have  a 
wider  range  of  choice,  and  also  between  those  districts 
for  which  the  Governor-General  can  make  ordinances  in 
his  executive  capacity,  and  those  which  are  legislated 
for  by  him  in  Council  in  the  ordinary  way.  There  are 
also  many  differences  in  the  administrative  systems 
of  the  different  Presidencies  and  other  territories, 
besides  of  course  all  imaginable  diversities  in  the 
amount  of  independence  left  to  the  different  '  Pro- 
tected States,'  some  of  which  are  powerful  kingdoms, 
like  Hyderabad,  while  many,  as  for  instance  in  Gujarat, 
are  petty  principalities  of  two  or  three  dozen  square  miles. 
The  mention  of  these  protected  States  suggests  an- 
other point  of  comparison.  Rome  brought  many  prin- 
cipalities or  kingdoms  under  her  influence,  especially  in 
the  eastern  parts  of  the  Empire  ;  and  dealt  with  each  upon 
the  basis  of  the  treaty  by  which  her  supremacy  had  been 
acknowledged,  allowing  to  some  a  wider,  to  some  a  nar- 
rower measure  of  autonomy  2.  Ultimately,  however,  all 
these,  except  a  few  on  the  frontiers,  passed  under  her 
direct  sway :  and  this  frequently  happened  in  cases  where 

1  The  use  of  the  word  to  denote  the  two  great  ecclesiastical  divisions  of  Eng- 
land (Province  of  Canterbury  and  Province  of  York)  is  a  relic  of  the  Roman  im- 
perial system. 

2  For  instance,  Cappadocia,  Pontus,  and  Commagene  were  left  as  subject  king- 
doms till  17  a.  d.,  63  a.  d.,  and  72  a.  l>.  respectively. 


ROMAN  AND  BRITISH   EMPIRES  31 

the  native  dynasty  had  died  out,  so  that  the  title  lapsed 
to  the  Emperor.  The  Iceni  in  Britain  seem  to  have  been 
such  a  protected  State,  and  it  was  the  failure  of  male 
heirs  that  caused  a  lapse.  So  the  Indian  Government 
was  wont,  when  the  ruling  family  became  extinct  or  hope- 
lessly incompetent,  to  annex  to  the  dominions  of  the 
British  Crown  the  principality  it  had  ruled.  From  the 
days  of  Lord  Canning,  however,  a  new  policy  has  been 
adopted.  It  is  now  deemed  better  to  maintain  the  native 
dynasties  whenever  this  can  be  done,  so  a  childless  prince 
is  suffered  to  adopt,  or  provide  for  the  adoption  of,  some 
person  approved  by  the  Government ;  and  the  descen- 
dants of  this  person  are  recognized  as  rulers  1.  The  in- 
coming prince  feels  that  he  owes  his  power  to  the  British 
Government,  while  adoption  gives  him  a  title  in  the  eyes 
of  his  subjects. 

The  differences  I  have  mentioned  between  the  British 
provinces  are  important,  not  only  as  respects  adminis- 
tration, but  as  respects  the  system  of  landholding.  All 
over  India,  as  in  many  other  Oriental  countries,  it  is 
from  the  land  that  a  large  part  of  revenue,  whether  one 
calls  it  rent  or  land  tax,  is  derived.  In  some  provinces 
the  rent  is  paid  direct  to  the  Government  by  the  culti- 
vator, in  others  it  goes  to  intermediary  landlords,  who 
in  their  turn  are  responsible  to  the  State.  In  some 
provinces  it  has  been  permanently  fixed,  by  what  is 
called  a  Land-settlement  2,  and  not  always  on  the  same 
principles.  The  subject  is  far  too  large  and  intricate  to 
be  pursued  here.  I  mention  it  because  in  the  Roman 
Empire  also  land  revenue  was  the  mainstay  of  the  im- 

1  '  The  extent  to  which  confidence  has  been  restored  by  Lord  Canning's  edict  is 
shown  by  the  curious  fact  that  since  its  promulgation  a  childless  ruler  very  rarely 
adopts  in  his  own  lifetime.  An  heir  presumptive,  who  knows  that  he  is  to  succeed 
and  who  may  possibly  grow  restive  if  his  inheritance  is  delayed,  is  for  various  ob- 
scure reasons  not  the  kind  of  person  whom  an  Oriental  ruler  cares  to  see  idling 
about  his  palace,  so  that  a  politic  chief  oftens  prefers  leaving  the  duty  of  nominat- 
ing a  successor  to  his  widows,  who  know  his  mind  and  have  every  reason  for 
wishing  him  long  life.'— Sir  A.  C.  Lyall  in  Law  Quarterly  Review  for  October, 
1893. 

2  One  finds  something  similar  to  this  Land-settlement  in  the  Roman  plan  of  de- 
termining the  land  revenue  of  a  province  by  what  was  called  the  lex  J>rovinciae. 


82  ROMAN  AND  BRITISH  EMPIRES 

perial  treasury.  Where  territory  had  been  taken  in  war, 
the  fact  of  conquest  was  deemed  to  have  made  the 
Roman  people  ultimate  owners  of  the  land  so  acquired, 
and  the  cultivators  became  liable  to  pay  what  we  should 
call  rent  for  it.  In  some  provinces  this  rent  was  farmed 
out  to  contractors  called  publicani,  who  offered  to  the 
State  the  sum  equivalent  to  the  rent  of  the  area  con- 
tracted for,  minus  the  expense  of  collection  and  their  own 
profit  on  the  undertaking,  and  kept  for  themselves  what- 
ever they  could  extract  from  the  peasantry.  This  vicious 
system,  resembling  that  of  the  tithe  farmers  in  Ireland 
seventy  years  ago,  was  regulated  by  Nero  and  abolished 
by  Hadrian,  who  placed  the  imperial  procurator  in  charge 
of  the  land  revenue  except  as  regarded  the  forests  and 
the  mines.  It  exists  to-day  in  the  Ottoman  Empire. 
Convenient  for  the  State  as  it  seems,  it  is  wasteful,  and 
naturally  exposes  the  peasant,  as  is  conspicuously  the 
case  in  Asiatic  Turkey,  to  oppressions  perhaps  even 
harder  to  check  than  are  those  of  State  officials.  Winn 
the  English  came  to  India  they  found  it  in  force  there  ; 
and  the  present  landlord  class  in  Bengal,  called  Zemin- 
dars, are  the  representatives  of  the  rent  or  land  tax- 
farmers  under  the  native  princes  who  were,  perhaps 
unwisely,  recognized  as  landowners  by  the  British  a 
century  ago.  This  kind  of  tax-farming  is,  however,  no 
longer  practised  in  India,  a  merit  to  be  credited  to  the 
English  when  we  are  comparing  them  with  the  Romans 
of  the  Republic  and  the  earlier  Empire. 

Where  the  revenue  of  the  State  comes  from  the  land, 
the  State  is  obliged  to  keep  a  watchful  eye  upon  the 
condition  of  agriculture,  since  revenue  must  needs  de- 
cline when  agriculture  is  depressed.  There  was  not  in 
the  Roman  world,  and  there  is  not  in  India  now,  any 
question  of  agricultural  depression  arising  from  foreign 
competition,  for  no  grain  came  into  the  Empire  from 
outside,  or  comes  now  into  India1.  But  a  year  of 
drought,  or,  in  a  long  course  of  years,  the  exhaustion 

>  Rice,  however,  is  sent  from  Lower  Rurma  into  India  proper. 


ROMAN  AND  BRITISH  EMPIRES  83 

of  the  soil,  tells  heavily  on  the  agriculturist,  and  may 
render  him  unable  to  pay  his  rent  or  land  tax.  In  bad 
years  it  was  the  practice  of  the  more  indulgent  Em- 
perors to  remit  a  part  of  the  tax  for  the  year:  and  one 
of  the  complaints  most  frequently  made  against  harsh 
sovereigns,  or  extravagant  ones  like  Justinian,  was  that 
they  refused  to  concede  such  remissions.  A  similar  in- 
dulgence has  to  be  and  is  granted  in  India  in  like  cases. 

Finance  was  the  standing  difficulty  of  the  Roman  as 
it  is  of  the  Anglo-Indian  administrator.  Indeed,  the 
Roman  Empire  may  be  said  to  have  perished  from  want 
of  revenue.  Heavy  taxation,  and  possibly  the  exhaus- 
tion of  the  soil,  led  to  the  abandonment  of  farms,  reduc- 
ing the  rent  derivable  from  the  land.  The  terrible  plague 
of  the  second  century  brought  down  population,  and 
was  followed  by  a  famine.  The  eastern  provinces  had 
never  furnished  good  fighting  material :  and  the  diminu- 
tion of  the  agricultural  population  of  Italy,  due  partly 
to  this  cause,  partly  to  the  growth  of  large  estates 
worked  by  slave  labour,  made  it  necessary  to  recruit 
the  armies  from  the  barbarians  on  the  frontiers.  Even 
in  the  later  days  of  the  Republic  the  native  auxiliaries 
were  beginning  to  be  an  important  part  of  a  Roman 
army.  Moreover,  with  a  declining  revenue,  a  military 
establishment  such  as  was  needed  to  defend  the  eastern 
and  the  northern  frontiers  could  not  always  be  main- 
tained. The  Romans  had  no  means  of  drawing  a 
revenue  from  frontier  customs,  because  there  was  very 
little  import  trade ;  but  dues  were  levied  at  ports  and 
there  was  a  succession  tax,  which  usually  stood  at  five 
per  cent.  In  most  provinces  there  were  few  large  for- 
tunes on  which  an  income  or  property  tax  could  have 
been  levied,  except  those  of  persons  who  were  already 
paying  up  to  their  capacities  as  being  responsible  for  the 
land  tax  assessed  upon  their  districts.  The  salt  tax  was 
felt  so  sorely  by  the  poor  that  Aurelian  was  hailed  as  a 
benefactor  when  he  abolished  it. 

India  has  for  many  years  past  been,  if  not  in  financial 
3 


84  L'o\l\\    AND    BRITISH    EMPIRES 

straits,  vet  painfully  near  the  limit  of  her  taxable  re- 
sources. There  too  the  salt  tax  presses  hard  upon  the 
peasant;  and  the  number  of  fortunes  from  which  much 
can  be  extracted  by  an  income  or  property  tax  is,  rela- 
tively to  the  population,  very  small.  Comparing  her 
total  wealth  with  her  population,  India  is  a  poor  country, 
probably  poorer  than  was  the  Roman  Empire  in  the 
time  of  Constantine  1.  A  heavy  burden  lies  upon  her  in 
respect  of  the  salaries  of  the  upper  branches  of  the 
Civil  Service,  which  must  of  course  be  fixed  at  figures 
sufficient  to  attract  a  high  order  of  talent  from  England, 
and  a  still  heavier  one  in  respect  of  military  charges. 
On  the  other  hand,  she  has  the  advantage  of  being  able, 
when  the  guarantee  of  the  British  Government  is  given 
for  the  loan,  to  borrow  money  for  railways  and  other 
public  works,  at  a  rate  of  interest  very  low  as  com- 
pared with  what  the  best  Native  State  would  be  obliged 
to  offer,  or  as  compared  with  that  which  the  Roman 
Government  paid. 

Under  the  Republic,  Rome  levied  tribute  from  the 
provinces,  and  spent  some  of  it  on  herself,  though  of 
course  the  larger  part  went  to  the  general  expenses  of 
the  military  and  civil  administration.  Under  the  Em- 
perors that  which  was  spent  in  Rome  became  gradually 
less  and  less,  as  the  Emperor  became  more  and  more 
detached  from  the  imperial  city,  and  after  Diocletian, 
Italy  was  treated  as  a  province.  England,  like  Spain  in 
the  days  of  her  American  Empire  and  like  Holland  now, 
for  a  time  drew  from  her  Indian  conquests  a  substantial 
revenue.  An  inquiry  made  in  1773  showed  that,  since 
1765,  about  two  millions  a  year  had  been  paid  by  the 

1  The  total  revenue  of  British  India  was,  in  a.  D.  1840,  200,000,000  of  rupees,  and 
in  1898-9,  1,014,427,000  rupees,  more  than  a  fourth  of  which  was  land  revenue  and 
less  than  one-fourth  from  railways.  (The  exchange  value  of  the  rupee,  formerly 
about  two  shillings,  is  now  about  one  shilling  and  four  pence.)  .£190,000,000  has 
been  expended  upon  railways  in  British  India  and  the  Native  States.  The  land 
revenue  is  somewhat  increasing  with  the  bringing  of  additional  land  under  culti- 
vation. It  is  estimated  that  forty-two  per  cent,  of  the  cultivable  area  is  available 
for  further  cultivation.  The  funded  debt  of  India  is  now  ,£195,000,000,  the  un- 
funded about  ,£12,000,000. 


ROMAN  AND  BRITISH  EMPIRES  35 

Company  to  the  British  exchequer.  By  1773,  however, 
the  Company  had  incurred  such  heavy  debts  that  the 
exchequer  had  to  lend  them  money :  and  since  that 
time  Britain  has  drawn  no  tribute  from  India.  She 
profits  by  her  dominion  only  in  respect  of  having  an 
enormous  market  for  her  goods,  industrial  or  commer- 
cial enterprises  offering  comparatively  safe  investments 
for  her  capital,  and  a  field  where  her  sons  can  make 
a  career.  Apart  from  any  considerations  of  justice  or  of 
sentiment,  India  could  not  afford  to  make  any  substantial 
contribution  to  the  expenses  of  the  non-Indian  domi- 
nions of  the  Crown.  It  is  all  she  can  do  to  pay  her  own 
way. 

Those  whom  Rome  sent  out  to  govern  the  provinces 
were,  in  the  days  of  the  Republic  and  in  the  days  of 
Augustus,  Romans,  that  is  to  say  Roman  citizens  and 
natives  of  Italy.  Very  soon,  however,  citizens  born  in 
the  provinces  began  to  be  admitted  to  the  great  offices 
and  to  be  selected  by  the  Emperor  for  high  employment. 
As  early  as  the  time  of  Nero,  an  Aquitanian  chief,  Julius 
Vindex,  was  legate  of  the  great  province  of  Gallia  Lug- 
dunensis.  When  the  imperial  throne  itself  was  filled  by 
provincials,  as  was  often  the  case  from  Trajan  onwards, 
it  was  plain  that  the  pre-eminence  of  Italy  was  gone. 
If  a  man,  otherwise  eligible,  was  not  a  full  Roman 
citizen,  the  Emperor  forthwith  made  him  one.  By  the 
time  of  the  Antonines  (a.  d.  138-180)  there  was  prac- 
tically no  distinction  between  a  Roman  and  a  provincial 
citizen ;  and  we  may  safely  assume  that  the  large  major- 
ity of  important  posts,  both  military  and  civil,  were  held 
by  men  of  provincial  extraction.  Indeed  merit  probably 
won  its  way  faster  to  military  than  to  civil  distinction, 
for  in  governments  which  are  militant  as  well  as  military, 
promotion  by  merit  is  essential  to  the  success  of  the 
national  arms,  and  the  soldier  identifies  himself  with  the 
power  he  serves  even  faster  than  does  the  civilian.  So, 
long  before  full  citizenship  was  granted  to  the  whole 
Roman  world  (about  a.  d.  217),  it  is  clear  that  not  only 


36  ROMAN  AXD   liRITISH   EMPIRES 

the  lower  posts  in  which  provincials  had  always  been 
employed,  but  the  highest  also  were  freely  open  to  all 
subjects.  A  Gaul  might  be  sent  to  govern  Cilicia,  or  a 
Thracian  Britain,  because  both  were  now  Romans  rather 
than  Gauls  or  Thracians.  The  fact  that  Latin  and  Greek 
were  practically  familiar  to  nearly  all  highly  educated 
civil  servants,  because  Latin  was  the  language  of  law  as 
well  as  the  tongue  commonly  spoken  in  the  West,  while 
Greek  was  the  language  of  philosophy  and  (to  a  great 
extent)  of  letters,  besides  being  the  spoken  tongue  of 
most  parts  of  the  East,  made  a  well-educated  man  fit  for 
public  employment  everywhere,  for  he  was  not  (except 
perhaps  in  Syria  and  Egypt  and  a  few  odd  corners  of 
the  Empire)  obliged  to  learn  any  fresh  language.  And 
a  provincial  was  just  as  likely  as  an  Italian  to  be  highly 
educated.  Thus  the  officials  could  easily  get  into  touch 
with  the  subjects,  and  felt  hardly  more  strange  if  they 
came  from  a  distance  than  a  Scotchman  feels  if  he  is 
appointed  to  a  professorship  in  Quebec,  or  an  Irish- 
man if  he  becomes  postmaster  in  a  Norfolk  village.  Noth- 
ing contributed  more  powerfully  to  the  unity  and  the 
strength  of  the  Roman  dominion  than  this  sense  of  an 
imperial  nationality. 

The  English  in  India  have,  as  did  the  Romans, 
always  employed  the  natives  in  subordinate  posts.  The 
enormous  majority  of  persons  who  carry  on  the  civil 
administration  there  at  this  moment  are  Asiatics.  But 
the  English,  unlike  the  Romans,  have  continued  to  re- 
serve the  higher  posts  for  men  of  European  stock.  The 
contrast  in  this  respect  between  the  Roman  and  the 
English  policy  is  instructive,  and  goes  down  to  the 
foundation  of  the  differences  between  English  and 
Roman  rule.  As  we  have  seen,  the  City  of  Rome 
became  the  Empire,  and  the  Empire  became  Rome. 
National  independence  was  not  regretted,  for  the  East 
had  been  denationalized  before  the  Italian  conqueror 
appeared,  and  the  tribes  of  the  West,  even  those 
who  fought  best  for  freedom,  had  not  reached  a  genuine 


ROMAN  AND  BRITISH   EMPIRES  37 

national  life  when  Spain,  Gaul,  and  Britain  were  brought 
under  the  yoke.  In  the  third  century  a.  d.  a  Gaul,  a 
Spaniard,  a  Pannonian,  a  Bithynian,  a  Syrian  called 
himself  a  Roman,  and  for  all  practical  purposes  was  a 
Roman.  The  interests  of  the  Empire  were  his  interests, 
its  glory  his  glory,  almost  as  much  as  if  he  had  been 
born  in  the  shadow  of  the  Capitol.  There  was,  there- 
fore, no  reason  why  his  loyalty  should  not  be  trusted, 
no  reason  why  he  should  not  be  chosen  to  lead  in  war, 
or  govern  in  peace,  men  of  Italian  birth.  So,  too,  the 
qualities  which  make  a  man  capable  of  leading  in  war 
or  administering  in  peace  were  just  as  likely  to  be 
found  in  a  Gaul,  or  a  Spaniard,  or  a  German  from  the 
Rhine  frontier  as  in  an  Italian.  In  fact,  men  of  Italian 
birth  play  no  great  part  in  later  imperial  history  1. 

It  is  far  otherwise  in  India,  though  there  was  among 
the  races  of  India  no  nation.  The  Englishman  does 
not  become  an  Indian,  nor  the  Indian  an  Englishman. 
The  Indian  does  not  as  a  rule,  though  of  course  there 
have  been  not  a  few  remarkable  exceptions  to  the  rule, 
possess  the  qualities  which  the  English  deem  to  be 
needed  for  leadership  in  war  or  for  the  higher  posts  of 
administration  in  peace  2.  For  several  reasons,  reasons 
to  be  referred  to  later,  he  can  seldom  be  expected  to  feel 
like  an  Englishman,  and  to  have  the  same  devotion  to 
the  interests  of  England  which  may  be  counted  on  in 
an  Englishman.  Accordingly  the  English  have  made 
in  India  arrangements  to  which  there  was  nothing  simi- 
lar in  the  Roman  Empire.  They  have  two  armies,  a 
native  and  a  European,  the  latter  of  which  is  never  suf- 
fered to  fall  below  a  certain  ratio  to  the  former.  The 
latter  is  composed  entirely  of  Englishmen.  In  the  for- 
mer all  military  posts  in  line  regiments  above  that  of 

1  After  the  fifth  century,  Armenians,  Isaurians,  and  Northern  Macedonians 
figure  more  largely  in  the  Eastern'Empire  than  do  natives  of  the  provinces  round 
the  Aegaean. 

2  Among  these  exceptions  may  be  mentioned  Sir  Syed  Ahmed  of  Aligurh,  and 
the  late  Mr.  Justice  Trimbak  Telang  of  Bombay,  both  men  of  remarkable  force 
and  elevation  of  character. 


38  ROM  AX  A\i>   BRITISH   EMPIRES 

subahdar  (equivalent  to  captain)  are  reserved  to  English- 
men1. The  artillery  and  engineer  services  are  kept  in 
English  hands,  i.e.  there  is  hardly  any  native  artillery. 
It  is  only,  therefore,  in  the  native  contingents  already 
referred  to  that  natives  are  found  in  the  higher  grades. 
These  contingents  may  be  compared  with  the  auxiliary 
barbarian  troops  under  non-Roman  commanders  whom 
we  find  in  the  later  ages  of  Rome,  after  Constantine. 
Such  commanders  proved  sometimes,  like  the  Vandal 
Stilicho,  energetic  defenders  of  the  imperial  throne, 
sometimes,  like  the  Suevian  Ricimer,  formidable  men- 
aces to  it  2.  But  apart  from  these,  the  Romans  had  but 
one  army;  and  it  was  an  army  in  which  all  subjects  had 
an  equal  chance  of  rising. 

In  a  civil  career,  the  native  of  India  may  go  higher 
under  the  English  than  he  can  in  a  military  one.  A 
few  natives,  mostly  Hindus,  and  indeed  largely  Bengali 
Hindus,  have  won  their  way  into  the  civil  service  by 
passing  the  competitive  Indian  Civil  Service  examina- 
tion in  England,  and  some  of  these  have  risen  to  the 
posts  of  magistrate  and  district  judge.  A  fair  proportion 
of  the  seats  on  the  benches  of  the  Supreme  Courts 
in  Calcutta,  Madras,  Bombay,  Allahabad,  and  Lahore 
have  been  allotted  to  native  barristers  of  eminence, 
several  of  whom  have  shown  themselves  equal  in  point 
of  knowledge  and  capacity,  as  well  as  in  integrity,  to 
the  best  judges  selected  from  the  European  bar  in  India 
or  sent  out  from  the  English  bar.  Xo  native,  however, 
has  ever  been  thought  of  for  the  great  places,  such  as 
those  of  Lieutenant-Governor  or  Chief  Commissioner, 
although  all  British  subjects  are  legally  eligible  for  any 
p<  is',  in  the  service  of  the  Crown  in  any  part  of  the  British 
Dominions. 

1  The  subahdar,  however,  is  rather  a  non-commissioned  than  a  commissioned 
officer,  and  is  not  a  member  of  the  British  officers'  mess. 

'■'  Russia  places  Musulmans  from  the  Caucasian  provinces  in  hi^h  military  posts. 
Rut  she  has  no  .irmy  corresponding  to  the  native  army  in  India,  and  as  she  has  a 
number  of  MuMilman  subjects  in  European  Russia  it  is  all  the  more  natural  fr,r 
her  t"  have  a  Colonel  Temirhan  Shipshcff  at  Aralykh  and  a  General  Alikhanoff 
at  Mcrv. 


ROMA  .V   AND   BRITISB  EMPIRES  39 

Regarding  the  policy  of  this  exclusion  there  has  been 
much  difference  of  opinion.  As  a  rule,  Anglo-Indian 
officials  approve  the  course  which  I  have  described  as 
that  actually  taken.  But  I  know  some  who  think  that 
there  are  natives  of  ability  and  force  of  character  such 
as  to  fit  them  for  posts  military  as  well  as  civil,  higher 
than  any  to  which  a  native  has  yet  been  advanced,  and 
who  sees  advantages  in  selecting  a  few  for  such  posts. 
They  hold,  however,  that  such  natives  ought  to  be 
selected  for  civil  appointments,  not  by  competitive 
examination  in  England  but  in  India  itself  by  those 
who  rule  there,  and  in  respect  of  personal  merits  tested 
by  service.  Some  opposition  to  such  a  method  might 
be  expected  from  members  of  the  regular  civil  service, 
who  would  consider  their  prospects  of  promotion  to 
be  thereby  prejudiced. 

Here  we  touch  an  extremely  interesting  point  of  com- 
parison between  the  Roman  and  the  English  systems. 
Both  nations,  when  they  started  on  their  career  of  con- 
quest, had  already  built  up  at  home  elaborate  constitu- 
tional systems  in  which  the  rights  of  citizens,  both 
public  and  private  civil  rights,  had  been  carefully  settled 
and  determined.  What  was  the  working  of  these  rights 
in  the  conquered  territories  ?  How  far  were  they  ex- 
tended by  the  conquerors,  Roman  and  English,  and  with 
what  results  ? 

Rome  set  out  from  the  usual  practice  of  the  city  re- 
publics of  the  ancient  world.  No  man  enjoyed  any  rights 
at  all,  public  or  private,  except  a  citizen  of  the  Republic. 
A  stranger  coming  to  reside  in  the  city  did  not,  no  matter 
how  long  he  lived  there,  nor  did  his  son  or  grandson, 
obtain  those  rights  unless  he  was  specially  admitted  to 
become  a  citizen.  From  this  principle  Rome,  as  she  grew, 
presently  found  herself  obliged  to  deviate.  She  admitted 
one  set  of  neighbours  after  another,  sometimes  as  allies, 
sometimes  in  later  days,  as  conquered  and  incorporated 
communities,  to  a  citizenship  which  was  sometimes  in- 
complete, including  only  private  civil  rights,  sometimes 


40  HOU.W    AND   BRITISH    IAWIREB 

complete,  including  the  right  of  voting  in  the  assembly 
and  the  right  of  being  chosen  to  a  public  office.  Before 
the  dictatorship  of  Julius  Caesar  practically  all  Italians, 
except  the  people  of  Cisalpine  Gaul,  which  remained  a 
province  till  b.  c.  43,  had  been  admitted  to  civic  rights. 
Citizenship,  complete  or  partial  (i.e.  including  or  not 
including  public  rights)  had  also  begun  to  be  conferred 
on  a  certain  number  of  cities  or  individuals  outside  Italy. 
Tarsus  in  Cilicia,  of  which  St.  Paul  was  a  native,  enjoyed 
it,  so  he  was  born  a  Roman  citizen.  This  process  of  en- 
larging citizenship  went  on  with  accelerated  speed,  in 
and  after  the  days  of  the  Flavian  Emperors.  Under 
Hadrian,  the  whole  of  Spain  seems  to  have  enjoyed  civic 
rights.  Long  before  this  date  the  ancient  right  of  voting 
in  the  Roman  popular  Assembly  had  become  useless, 
but  the  other  advantages  attached  to  the  status  of  citizen 
were  worth  having,  for  they  secured  valuable  immunities. 
Finally,  early  in  the  third  century  a.  d.,  every  Roman 
subject  was  by  imperial  edict  made  a  citizen  for  all  pur- 
poses whatsoever.  Universal  eligibility  to  office  had, 
as  we  have  seen,  gone  ahead  of  this  extension,  for  all 
offices  lay  in  the  gift  of  the  Emperor  or  his  ministers ; 
and  when  it  was  desired  to  appoint  any  one  who  might 
not  be  a  full  citizen,  citizenship  was  conferred  along  with 
the  office.  Thus  Rome  at  last  extended  to  all  her  sub- 
jects the  rights  that  had  originally  been  confined  to  her 
1  >\vn  small  and  exclusive  community. 

In  England  the  principle  that  all  private  civil  rights 
belong  to  every  subject  alike  was  very  soon  established, 
and  may  be  said  to  have  never  been  doubted  since  the 
final  extinction  of  serfdom  in  the  beginning  of  the  seven- 
teenth century.  Public  civil  rights,  however,  did  not 
necessarily  go  with  private.  Everybody,  it  is  true,  was 
(subject  to  certain  religious  restrictions  now  almost 
entirely  repealed)  eligible  to  any  office  to  which  he 
might  be  appointed  by  the  Crown,  and  was  also  (subject 
to  certain  property  qualifications  which  lasted  till  our 
own  time)  capable  of  being  chosen  to  fill  any  elective 


ROMAN  AND  BRITISH  EMPIRES  41 

post  or  function,  such  as  that  of  member  of  the  House 
of  Commons.  But  the  right  of  voting  did  not  neces- 
sarily go  along  with  other  rights,  whether  pubjic  or 
private,  and  it  is  only  within  the  last  forty  years  that  it 
has  been  extended  by  a  series  of  statutes  to  the  bulk 
of  the  adult  male  population.  Now  when  Englishmen 
began  to  settle  abroad,  they  carried  with  them  all  their 
private  rights  as  citizens,  and  also  their  eligibility  to 
office ;  but  their  other  public  rights,  i.  e.  those  of  voting 
they  could  not  carry,  because  these  were  attached  to 
local  areas  in  England.  When  territories  outside  Eng- 
land were  conquered,  their  free  inhabitants,  in  becom- 
ing subjects  of  the  Crown,  became  therewith  entitled  to 
all  such  rights  of  British  subjects  as  were  not  connected 
with  residence  in  Britain :  that  is  to  say,  they  had  all  the 
private  civil  rights  of  Englishmen,  and  also  complete 
eligibility  to  public  office  (unless  of  course  some  special 
disqualification  was  imposed).  The  rights  of  an  English 
settler  in  Massachusetts  in  the  seventeenth  and  eigh- 
teenth centuries  were  those  of  an  Englishman,  except 
that  he  could  not  vote  at  an  English  parliamentary  elec- 
tion because  he  was  not  resident  in  any  English  constitu- 
ency ;  and  the  same  rule  became  applicable  to  a  French 
Canadian  after  the  cession  of  Canada  to  the  British 
Crown. 

So  when  India  was  conquered,  the  same  principles 
were  again  applied.  Every  free  Indian  subject  of  the 
Crown  soon  became  entitled  to  the  private  civil  rights 
of  an  Englishman,  except  so  far  as  his  own  personal 
law,  Hindu  or  Musulman  or  Parsi  or  Jain,  might  modify 
those  rights ;  and  if  there  was  any  such  modification, 
that  was  recognized  for  his  benefit  rather  than  to  his 
prejudice.  Thus  the  process  which  the  Romans  took 
centuries  to  complete  was  effected  almost  at  once  in 
India  by  the  application  of  long  established  doctrines  of 
English  law.  Accordingly  we  have  in  India  the  singular 
result  that  although  there  are  in  that  country  no  free 
institutions  (other  than  those  municipal  ones  previously 


42  ROM  AS   AND  BRITISH    UMPIRES 

referred  to)  nor  any  representative  government,  every 
Indian  subject  is  eligible  to  any  office  in  the  gift  of  the 
Crown  anywhere,  and  to  any  post  or  function  to  which 
any  body  of  electors  may  select  him.  He  may  be  chosen 
by  a  British  constituency  a  member  of  the  British  House 
of  Commons,  or  by  a  Canadian  constituency  a  member 
of  the  House  of  Commons  of  Canada.  Two  natives  of 
India  (both  Parsis)  have  already  been  chosen,  both  by 
London  constituencies,  to  sit  in  the  British  House.  So 
a  native  Hindu  or  Musulman  might  be  appointed  by  the 
Crown  to  be  Lord  Chief  Justice  of  England  or  Governor- 
General  of  Canada  or  Australia.  He  might  be  created  a 
peer.  He  might  become  Prime  Minister.  And  as  far  as 
legal  eligibility  goes,  he  might  be  named  Governor- 
General  of  India,  though  as  a  matter  of  practice,  no 
Indian  has  ever  been  placed  in  any  high  Indian  office. 
Neither  birth,  nor  colour,  nor  religion  constitutes  any 
legal  disqualification.  This  was  expressly  declared  as 
regards  India  by  the  India  Act  of  1833,  and  has  been 
more  than  once  formally  declared  since,  but  it  did  not 
require  any  statute  to  establish  what  flowed  from  the 
principles  of  our  law.  And  it  need  hardly  be  added  that 
the  same  principles  apply  to  the  Chinese  subjects  of  the 
Crown  in  Hong  Kong  or  Singapore  and  to  the  negro 
subjects  of  the  Crown  in  Jamaica  or  Zululand.  In  this 
respect  at  least  England  hasvworthily  repeated  the  liberal 
policy  of  Rome.  She  has  done  it,  however,  not  by  way  of 
special  grants,  but  by  the  automatic  and  probably  uncon- 
templated operation  of  the  general  principles  of  her  law. 

As  I  have  referred  to  the  influence  of  English  con- 
stitutional ideas,  it  is  worth  noting  that  it  is  these  ideas 
which  have  led  the  English  of  late  years  not  only  to 
create  in  India  city  municipalities,  things  entirely  foreign 
to  the  native  Indian  mind,  but  also  to  provide  by  statute 
(in  1892)  for  the  admission  of  a  certain  number  of  nomi- 
nated non-official  members  to  the  legislative  councils  of 
the  Governors  in  Bengal,  Bombay,  Madras,  the  North- 
West  Provinces  and   Oudh,  and   the   Punjab.     These 


ROMAN  AND  BRITISH   EMPIRES  43 

members  are  nominated,  not  elected,  because  it  has  been 
found  difficult  to  devise  a  satisfactory  scheme  of  election. 
But  the  provision  made  for  the  presence  of  native  non- 
officials  testifies  to  the  wish  of  the  English  Govern- 
ment to  secure  not  only  a  certain  amount  of  outside 
opinion,  but  also  a  certain  number  of  native  councillors 
through  whom  native  sentiment  may  be  represented, 
and  may  obtain  its  due  influence  on  the  conduct  of 
affairs. 

The  extension  of  the  civil  rights  of  Englishmen  to  the 
subjects  of  the  Crown  in  India  would  have  been  any- 
thing but  a  boon  had  it  meant  the  suppression  and 
extinction  of  native  law  and  custom.  This  of  course  it 
has  not  meant.  Neither  had  the  extension  of  Roman 
conquest  such  an  effect  in  the  Roman  Empire ;  and 
even  the  grant  of  citizenship  to  all  subjects  did  not 
quite  efface  local  law  and  usage.  As  the  position  and 
influence  of  English  law  in  India,  viewed  in  comparison 
with  the  relation  of  the  older  Roman  law  to  the  Roman 
provinces,  is  the  subject  of  another  of  these  Essays, 
I  will  here  pass  over  the  legal  side  of  the  matter,  and 
speak  only  of  the  parallel  to  be  noted  between  the  poli- 
tical action  of  the  conquering  nations  in  both  cases. 

Both  have  shown  a  prudent  wish  to  avoid  disturbing, 
any  further  than  the  fixed  principles  of  their  policy  made 
needful,  the  usages  and  beliefs  of  their  subjects.  The 
Romans  took  over  the  social  and  political  system  which 
they  found  in  each  of  the  very  dissimilar  regions  they 
conquered,  placed  their  own  officials  above  it,  modified 
it  so  far  as  they  found  expedient  for  purposes  of  revenue 
and  civil  administration  generally,  but  otherwise  let  it 
stand  as  they  found  it  and  left  the  people  alone.  In 
course  of  time  the  law  and  administration  of  the  con- 
querors, and  the  intellectual  influences  which  literature 
called  into  play,  did  bring  about  a  considerable  measure 
of  assimilation  between  Romans  and  provincials,  espe- 
cially in  the  life  and  ideas  of  the  upper  classes.  But 
this  was  the  result  of  natural  causes.    The  Romans  did 


44  i;oM\\    AND  BRITISH   EMPIRES 

not  consciously  and  deliberately  work  for  uniformity. 
Especially  in  the  sphere  of  religion  they  abstained  from 
all  interference.  They  had  indeed  no  temptation  to  inter- 
fere either  with  religious  belief  or  with  religious  prac- 
tice, for  their  own  system  was  not  a  universal  but  a 
strictly  national  religion,  and  the  educated  classes  had 
begun  to  sit  rather  loose  to  that  religion  before  the 
process  of  foreign  conquest  had  gone  far.  According 
to  the  theory  of  the  ancient  world,  every  nation  had 
its  own  deities,  and  all  these  deities  were  equally  to 
be  respected  in  their  own  country.  Whether  they  were 
at  bottom  the  same  deities  under  different  names,  or 
were  quite  independent  divine  powers,  did  not  matter. 
Each  nation  and  each  member  of  a  nation  was  expected 
to  worship  the  national  gods :  but  so  long  as  an  indi- 
vidual man  did  not  openly  reject  or  insult  those  gods, 
he  might  if  he  pleased  worship  a  god  belonging  to 
some  other  country,  provided  that  the  worship  was  not 
conducted  with  shocking  or  demoralizing  rites,  such  as 
led  to  the  prohibition  of  the  Bacchanalian  cult  at  Rome  1, 
The  Egyptian  Scrapis  was  a  fashionable  deity  among 
Roman  women  as  early  as  the  time  of  Catullus.  We 
are  told  that  Claudius  abolished  Druidism  on  account 
of  its  savage  cruelty,  but  this  may  mean  no  more  than 
that  he  forbade  the  Druidic  practice  of  human  sacrifices'. 
There  was  therefore,  speaking  broadly,  no  religious 
persecution  and  little  religious  intolerance  in  the  ancient 
world,  for  the  Christians,  it  need  hardly  be  said,  were 
persecuted  not  because  of  their  religion  but  because 
they  were  a  secret  society,  about  which,  since  it  was  new, 
and  secret,  and  Oriental,  and  rejected  all  the  gods  of 
all  the  nations  alike,  the  wildest  calumnies  were  readily 
believed.  The  first  religious  persecutors  were  the  Persian 
hire-worshipping  kings  of  the  Sassanid  dynasty,  who 
occasionally  worried  their  Christian  subjects. 

1  Constantine  prohibited  the  immoral  excesses  practised  by  the  Syrians  of  1  li  li- 
opolis. 

2  '  Druidarum  relif,'ionem  apud  < '■alios  dir.ie  immaml.uis  et  tantuin  civibus  sub 
AuRusto  interdictam  penitus  abolevit.'— Sucton,  Vita  Claud,  c.  25- 


ROMAN  AND  BRITISH  EMPIRES  45 

Neither,  broadly  speaking,  was  religious  propagan- 
dism  known  to  the  ancient  world.  There  were  no  mis- 
sions, neither  foreign  missions  nor  home  missions.  If  a 
man  did  not  sacrifice  to  the  gods  of  his  own  country,  his 
fellow  citizens  might  think  ill  of  him.  If  he  was  accused 
of  teaching  that  the  gods  did  not  exist,  he  might  possibly, 
like  Socrates,  be  put  to  death,  but  nobody  preached 
to  him.  On  the  other  hand,  if  he  did  worship  them, 
he  was  in  the  right  path,  and  it  would  have  been  deemed 
not  only  impertinent,  but  almost  impious,  for  the  native 
of  another  country  to  seek  to  convert  him  to  another 
faith,  that  is  to  say,  to  make  him  disloyal  to  the  gods 
of  his  own  country,  who  were  its  natural  and  time- 
honoured  protectors.  The  only  occasions  on  which  one 
hears  of  people  being  required  to  perform  acts  of  wor- 
ship to  any  power  but  the  deities  of  their  country  are 
those  cases  in  which  travellers  were  expected  to  offer 
a  prayer  or  a  sacrifice  to  some  local  deity  whose  terri- 
tory they  were  traversing,  and  whom  it  was  therefore 
expedient  to  propitiate,  and  those  other  cases  in  which 
a  sort  of  worship  was  required  to  be  rendered  to  the 
monarch,  or  the  special  protecting  deity  of  the  monarch, 
under  whose  sway  they  lived.  The  edict  attributed  to 
Nebuchadnezzar  in  the  book  of  Daniel  may  in  this  con- 
nexion be  compared  with  the  practice  in  the  Roman 
Empire  of  adoring  the  spirit  that  watched  over  the 
reigning  Caesar.  To  burn  incense  on  the  altar  of  the 
Genius  of  the  Emperor  was  the  test  commonly  proposed 
to  the  persons  accused  of  being  Christians. 

All  this  is  the  natural  result  of  polytheism.  With  the 
coming  of  faiths  each  of  which  claims  to  be  exclusively 
and  universally  true,  the  face  of  the  world  was  changed. 
Christianity  was  necessarily  a  missionary  religion,  and 
unfortunately  soon  became  also,  forgetting  the  precepts 
of  its  Founder,  a  persecuting  religion.  Islam  followed 
in  the  same  path,  and  for  similar  reasons.  In  India 
the  strife  of  Buddhism  with  Hinduism  gave  rise  to 
ferocious  persecutions,  which  however  were  perhaps  as 


46  ROMAX    AM)  BRITISH    EMPIRES 

much  political  as  religious.  When  the  Portuguese  and 
Spaniards  began  to  discover  and  conquer  new  countries 
beyond  the  oceans,  the  spread  of  religion  was  in  the 
mouths  of  all  the  adventurers,  and  in  the  minds  of  many 
of  the  baser  as  well  as  of  the  better  sort.  Spain  accord- 
ingly forced  her  faith  upon  all  her  subjects,  and  found 
no  great  resistance  from  the  American  peoples,  though 
of  course  their  Christianity  seldom  went  deep,  as  in- 
deed it  remains  to-day  in  many  parts  of  Central  and 
South  America,  a  thin  veneer  over  the  ancient  supersti- 
tions of  the  aborigines.  Portugal  did  the  like,  so  far  as 
she  could,  in  India  and  in  Africa.  So  too  the  decrees 
by  which  the  French  colonizing  companies  were  founded 
in  the  days  of  Richelieu  provided  that  the  Roman  Catho- 
lic faith  was  to  be  everywhere  made  compulsory,  and  that 
converted  pagans  were  to  be  admitted  to  the  full  civil 
rights  of  Frenchmen1.  But  when  the  English  set  forth 
to  trade  and  conquer  they  were  not  thinking  of  religion. 
The  middle  of  the  eighteenth  century,  when  Bengal  and 
Madras  were  acquired,  was  for  England  an  age  when 
persecution  had  died  out  and  missionary  propagandism 
had  scarcely  begun.  The  East  India  Company  did  not 
at  first  interfere  in  any  way  with  the  religious  rites  it 
found  practised  by  the  people,  however  cruel  or  immoral 
they  might  be.  It  gave  no  advantages  to  Christian  con- 
verts, and  for  a  good  while  it  even  discouraged  the  pre- 
sence of  missionaries,  lest  they  should  provoke  dis- 
turbances. Bishops  were  thought  less  dangerous,  and 
one  was  appointed,  with  three  Archdeacons  under  him, 
by  the  Act  of  1813.  A  sort  of  miniature  church  establish- 
ment, for  the  benefit  of  Europeans,  still  exists  and  is  sup- 
ported out  of  Indian  revenues.  After  a  time,  however, 
some  of  the  more  offensive  or  harmful  features  of  native 
worship  began  to  be  forbidden.  The  human  sacrifices 
that  occasionally  occurred  among  the  hill  tribes  were 
treated  as  murders,  and  the  practice  of  Sutti — the 
self-immolation  of  the  Hindu  widow  on  her  husband's 

1  I  owe  this  fact  to  Sir  A.  C.  I.yall  (of.  cit.  p.  66). 


ROMAN  AND   BRITISH  EMPIRES  47 

funeral  pyre — was  forbidden  as  far  back  as  1829.  No 
hindrance  is  now  thrown  in  the  way  of  Christian  mis- 
sions :  and  there  is  perfect  equality,  as  respects  civil 
rights  and  privileges,  not  only  between  the  native 
votaries  of  all  religions,  but  also  between  them  and 
Europeans. 

So  far  as  religion  properly  so-called  is  concerned, 
the  policy  of  the  English  is  simple  and  easy  to  apply. 
But  as  respects  usages  which  are  more  or  less  associated 
with  religion  in  the  native  mind,  but  which  European 
sentiment  disapproves,  difficulties  sometimes  arise.  The 
burning  of  the  widow  was  one  of  these  usages,  and  has 
been  dealt  with  at  the  risk  of  offending  Hindu  prejudice. 
Infanticide  is  another;  and  the  British  Government  try 
to  check  it,  even  in  some  of  the  protected  States.  The 
marriage  of  young  children  is  a  third:  and  this  it  has 
been  thought  not  yet  prudent  to  forbid,  although  the  best 
native  opinion  is  beginning  to  recognize  the  evils  that 
attach  to  it.  Speaking  generally,  it  may  be  said  that  the 
English  have,  like  the  Romans  but  unlike  the  Spaniards, 
shown  their  desire  to  respect  the  customs  and  ideas  of 
the  conquered  peoples.  Indifferentism  has  served  them 
in  their  career  of  conquest  as  well  as  religious  eclecticism 
served  the  Romans,  so  that  religious  sentiment,  though 
it  sometimes  stimulated  the  valour  of  their  native  ene- 
mies, has  not  really  furnished  any  obstacle  to  the  pacifica- 
tion of  a  conquered  people.  The  English  have,  however, 
gone  further  than  did  the  Romans  in  trying  to  deter  their 
subjects  from  practices  socially  or  morally  deleterious. 

As  regards  the  work  done  by  the  English  for  educa- 
tion in  the  establishment  of  schools  and  Universities, 
no  comparison  with  Rome  can  usefully  be  drawn : 
because  it  was  not  deemed  in  the  ancient  world  to  be 
the  function  of  the  State  to  make  a  general  educational 
provision  for  its  subjects.  The  Emperors,  however, 
appointed  and  paid  teachers  of  the  liberal  arts  in  some 
of  the  greater  cities.  That  which  the  English  have 
done,  however,  small  as  it  may  appear  in  comparison 


43  ROMAN   AND  BRITISH  EMPIRES 

with  the  vast  population  they  have  to  care  for1,  witnesses 
to  the  spirit  which  has  animated  them  in  seeking  to 
extend  to  the  conquered  the  opportunities  of  progress 
which  they  value  for  themselves. 

The  question  how  far  the  triumphs  of  Rome  and  of 
England  are  due  to  the  republican  polity  of  the  one, 
and  the  practically  republican  (though  not  until  1867 
or  1885  democratic)  polity  of  the  other,  is  so  large 
a  one  that  I  must  be  content  merely  to  indicate  it  as 
well  deserving  a  discussion.  Several  similar  empires 
have  been  built  up  by  republican  governments  of  the 
oligarchic  type,  as  witness  the  empire  of  Carthage  in 
the  ancient,  and  that  of  Venice  in  the  later  mediaeval 
world.  One  can  explain  this  by  the  fact  that  in  such 
governments  there  is  usually,  along  with  a  continuity  of 
policy  hardly  to  be  expected  from  a  democracy,  a  con- 
stant succession  of  capable  generals  and  administrators 
such  as  a  despotic  hereditary  monarchy  seldom  provides, 
for  a  monarchy  of  that  kind  must  from  time  to  time 
have  feeble  or  dissolute  sovereigns,  under  whom  bad 
selections  will  be  made  for  important  posts,  policy  will 
oscillate,  and  no  adequate  support  will  be  given  to  the 
armies  or  fleets  which  are  maintaining  the  interests  of 
the  nation  abroad.  A  republic  is  moreover  likely  to 
have  a  larger  stock  of  capable  and  experienced  men  on 
which  to  draw  during  the  process  of  conquering  and 
organizing.  The  two  conspicuous  instances  in  which 
monarchies  have  acquired  and  long  held  vast  external 
dominions  are  the  Empires  of  Spain  and  Russia.  The 
former  case  is  hardly  an  exception  to  the  doctrine  just 
stated,  because  the  oceanic  Empire  of  Spain  was  won 
quickly  and  with  little  fighting  against  opponents  im- 
measurably inferior,  and  because  it  had  no  contermi- 
nous enemies  to  take  advantage  of  the  internal  decay 
which  soon  set  in.     In  the  case  of  Russia  the  process 

1  There  are  in  India  five  examining  and  degree-granting  Universities,  with 
about  8,000  matriculated  students,  nearly  all  of  them  taught  in  the  numerous  af- 
filiated colleges.  The  total  number  of  persons  returned  as  receiving  instruction  in 
India  is  4,357.°°°.  of  whom  402,000  are  girls. 


ROMAN  AND  BRITISH  EMPIRES  49 

has  been  largely  one  of  natural  expansion  over  re- 
gions so  thinly  peopled  and  with  inhabitants  so  back- 
ward that  no  serious  resistance  was  made  to  an  advance 
which  went  on  rather  by  settlement  than  by  conquest. 
It  is  only  in  the  Caucasus  and  in  Turkistan  that  Russia 
has  had  to  establish  her  power  by  fighting.  Her  con- 
flicts even  with  the  Persians  and  the  Ottoman  Turks 
have  been,  as  Moltke  is  reported  to  have  said,  battles  of 
the  one-eyed  against  the  blind.  But  it  must  be  added 
that  Russia  has  shown  during  two  centuries  a  remark- 
able power  of  holding  a  steady  course  of  foreign  policy. 
She  sometimes  trims  her  sails,  and  lays  the  ship  upon 
the  other  tack,  but  the  main  direction  of  the  vessel's 
course  is  not  altered.  This  must  be  the  result  of  wisdom 
or  good  fortune  in  the  choice  of  ministers,  for  the 
Romanoff  dynasty  has  not  contained  more  than  its  fair 
average  of  men  of  governing  capacity. 

There  is  one  other  point  in  which  the  Romans  and 
the  English  may  be  compared  as  conquering  powers. 
Both  triumphed  by  force  of  character.  During  the  two 
centuries  that  elapsed  between  the  destruction  of  Car- 
thage, when  Rome  had  already  come  to  rule  many  pro- 
vinces, and  the  time  of  Vespasian,  when  she  had  ceased  to 
be  a  city,and  was  passinginto  a  nation  conterminous  with 
her  dominions,  the  Romans  were  the  ruling  race  of  the 
world,  small  in  numbers,  even  if  we  count  the  peoples  of 
middle  Italy  as  Romans,  but  gifted  with  such  talents  for 
war  and  government,  and  possessed  of  such  courage 
and  force  of  will  as  to  be  able,  not  only  to  dominate  the 
whole  civilized  world  and  hold  down  its  peoples,  but 
also  to  carry  on  a  succession  of  bloody  civil  wars  among 
themselves  without  giving  those  peoples  any  chance  of 
recovering  their  freedom.  The  Roman  armies,  though 
superior  in  discipline  to  the  enemies  they  had  to  encoun- 
ter, except  the  Macedonians  and  Greeks,  were  not  gene- 
rally superior  in  arms,  and  had  no  resources  of  superior 
scientific  knowledge  at  their  command.  Their  adver- 
saries in  Africa,  in  Greece,  and  in  Asia  Minor  were  as  far 
4 


50  ROM  W     Wl>   BRITISH   EMPIRES 

advanced  in  material  civilization  as  they  were  them- 
selves. It  was  their  strenuous  and  indomitable  will, 
buoyed  up  by  the  pride  and  self-confidence  born  of  a  long 
succession  of  victories  in  the  past,  that  enabled  them  to 
achieve  this  unparalleled  triumph.  The  triumph  was  a 
triumph  of  character,  as  their  poet  felt  when  he  penned 
the  famous  line,  Moribus  antiguis  stat  res  Romano,  virisquc. 
And  after  the  inhabitants  of  the  City  had  ceased  to  be 
the  heart  of  the  Empire,  this  consciousness  of  great- 
ness passed  to  the  whole  population  of  the  Roman 
world  when  they  compared  themselves  with  the  bar- 
barians outside  their  frontiers.  One  finds  it  even  in 
the  pages  of  Procopius,  a  Syrian  writing  in  Greek, 
after  the  western  half  of  the  Empire  had  been  dismem- 
bered by  barbarian  invasions. 

The  English  conquered  India  with  forces  much 
smaller  than  those  of  the  Romans ;  and  their  success 
in  subjugating  a  still  vaster  population  in  a  shorter 
time  may  thus  appear  more  brilliant.  But  the  Eng- 
lish had  antagonists  immeasurably  inferior  in  valour,  in 
discipline,  in  military  science,  and  generally  also  in  the 
material  of  war,  to  those  whom  the  Romans  overcame. 
Nor  had  they  ever  either  a  first-rate  general  or  a  monarch 
of  persistent  energy  opposed  to  them.  No  Hannibal, 
nor  even  a  Mithradates,  appeared  to  bar  their  path. 
Hyder  Ali  had  no  nation  behind  him ;  and  fortune 
spared  them  an  encounter  with  the  Afghan  Ahmed 
Shah  and  the  Sikh  Ranjit  Singh.  Their  most  formid- 
able opponents  might  rather  be  compared  with  the 
gallant  but  untrained  Celtic  Vercingctorix,  or  the 
showy  but  incompetent  Antiochus  the  Great.  It  was 
only  when  Europeans  like  Dupleix  came  upon  the  scene 
that  they  had  men  of  their  own  kind  to  grapple  with  ; 
and  Dupleix  had  not  the  support  from  home  which 
Clive  could  count  on  in  case  of  dire  necessity.  Still  the 
conquest  of  India  was  a  splendid  achievement,  more 
striking  and  more  difficult,  if  less  romantic,  than  the 
conquest  of  Mexico  by  Hcrnan  Cortez  or  the  conquest  of 


ROMAN  AND   BRITISH  EMPIRES  51 

Peru  by  Francisco  Pizarro,  though  it  must  be  admitted 
that  the  courage  of  these  two  adventurers  in  venturing 
far  into  unknown  regions  with  a  handful  of  followers  has 
never  been  surpassed.  Among  the  English,  as  among 
the  Romans,  the  sense  of  personal  force,  the  conscious 
ascendency  of  a  race  so  often  already  victorious,  with 
centuries  of  fame  behind  them,  and  a  contempt  for 
the  feebler  folk  against  whom  they  were  contending, 
were  the  main  source  of  that  dash  and  energy  and 
readiness  to  face  any  odds  which  bore  down  all  resis- 
tance. These  qualities  have  lasted  into  our  own  time. 
No  more  brilliant  examples  were  ever  given  of  them 
than  in  the  defence  of  the  Fort  at  Lucknow  and  in  the 
siege  of  Delhi  at  the  time  of  the  Indian  Mutiny  of 
1857-8.  And  it  is  worth  noting  that  almost  the  only 
disasters  that  have  ever  befallen  the  British  arms  have 
occurred  where  the  general  in  command  was  either 
incompetent,  as  must  sometimes  happen  in  every  army, 
or  was  wanting  in  boldness.  In  the  East,  more  than 
anywhere  else,  confidence  makes  for  victory,  and  one 
victory  leads  on  to  another. 

It  is  by  these  qualities  that  the  English  continue  to 
hold  India.  In  the  higher  grades  of  the  civil  adminis- 
tration which  they  fill  there  are  only  about  one  thousand 
persons :  and  these  one  thousand  control  two  hundred 
and  eighty-seven  millions,  doing  it  with  so  little  friction 
that  they  have  ceased  to  be  surprised  at  this  extraor- 
dinary fact.  The  English  have  impressed  the  imagina- 
tion of  the  people  by  their  resistless  energy  and  their 
almost  uniform  success.  Their  domination  seems  to 
have  about  it  an  element  of  the  supernatural,  for  the 
masses  of  India  are  still  in  that  mental  condition  which 
looks  to  the  supernatural  for  an  explanation  of  whatever 
astonishes  it.  The  British  Raj  fills  them  with  a  sense  of 
awe  and  mystery.  That  nearly  three  hundred  millions 
of  men  should  be  ruled  by  a  few  palefaced  strangers 
from  beyond  the  great  and  wide  sea,  strangers  who  all 
obey   some   distant   power,   and   who   never,   like   the 


52  ROM.W   AND    nillTISII  EMPIRES 

lieutenants  of  Oriental  sovereigns,  try  to  revolt  for  their 
own  benefit — this  seems  too  wonderful  to  be  anything 
but  the  doing  of  some  unseen  and  irresistible  divinity. 
I  heard  at  Lahore  an  anecdote  which,  slight  as  it  is, 
illustrates  the  way  in  which  the  native  thinks  of  these 
things.  A  tiger  had  escaped  from  the  Zoological  Gar- 
dens, and  its  keeper,  hoping  to  lure  it  back,  followed 
it.  When  all  other  inducements  had  failed,  he  lifted 
up  his  voice  and  solemnly  adjured  it  in  the  name  of 
the  British  Government,  to  which  it  belonged,  to  come 
back  to  its  cage.    The  tiger  obeyed. 

Now  that  we  have  rapidly  surveyed  the  more  salient 
points  of  resemblance  or  analogy  between  these  two 
empires,  it  remains  to  note  the  capital  differences  be- 
tween them,  one  or  two  of  which  have  been  already 
incidentally  mentioned.  On  the  most  obvious  of  all 
I  have  already  dwelt.  It  is  the  fact  that,  whereas  the 
Romans  conquered  right  out  from  their  City  in  all 
directions — south,  north,  west,  and  east — so  that  the 
capital,  during  the  five  centuries  from  b.  c.  200  (end  of 
the  Second  Punic  War)  to  A.  d.  325  (foundation  of  Con- 
stantinople), stood  not  far  from  the  centre  of  their  domi- 
nions, England  has  conquered  India  across  the  ocean, 
and  remains  many  thousands  of  miles  from  the  nearest 
point  of  her  Indian  territory.  Another  not  less  obvious 
difference  is  perhaps  less  important  than  it  seems. 
Rome  was  a  city,  and  Britain  is  a  country.  Rome,  when 
she  stepped  outside  Italy  to  establish  in  Sicily  her  first 
province,  had  a  free  population  of  possibly  only  seventy 
or  eighty  thousand  souls.  Britain,  when  she  began  her 
career  of  conquest  at  Plassy,  had  (if  we  include  Ireland, 
then  still  a  distinct  kingdom,  but  then  less  a  source  of 
weakness  than  she  has  sometimes  since  been)  a  popula- 
tion of  at  least  eleven  or  twelve  millions.  But,  apart  from 
the  fact  that  the  distance  from  Britain  to  India  round  the 
Cape  made  her  larger  population  less  available  for  action 
in  India  than  was  the  smaller  population  of  Rome  for 
action  in  the  Mediterranean,  the  comparison  must  not 


ROMAN  AND  BRITISH  EMPIRES  53 

really  be  made  with  Rome  as  a  city,  but  with  Rome  as 
the  centre  of  a  large  Italian  population,  upon  which 
she  drew  for  her  armies,  and  the  bulk  of  which  had, 
before  the  end  of  the  Republic,  become  her  citizens. 
On  this  point  of  dissimilarity  no  more  need  be  said, 
because  its  significance  is  apparent.  I  turn  from  it  to 
another  of  greater  consequence. 

The  relations  of  the  conquering  country  to  the  con- 
quered country,  and  of  the  conquering  race  to  the 
conquered  races,  are  totally  different  in  the  two  cases 
compared.  In  the  case  of  Rome  there  was  a  similarity 
of  conditions  which  pointed  to  and  ultimately  effected 
a  fusion  of  the  peoples.  In  the  case  of  England  there 
is  a  dissimilarity  which  makes  the  fusion  of  her  people 
with  the  peoples  of  India  impossible. 

Climate  offers  the  first  point  of  contrast.  Rome,  to 
be  sure,  ruled  countries  some  of  which  were  far  hotter 
and  others  far  colder  than  was  the  valley  of  the  Tiber. 
Doubtless  the  officer  who  was  stationed  in  Nubia  com- 
plained of  the  torrid  summer,  much  as  an  English 
officer  complains  of  Ouetta  or  Multan ;  nor  were  the 
winters  of  Ardoch  or  Hexham  agreeable  to  a  soldier 
from  Apulia.  But  if  the  Roman  married  in  Nubia,  he 
could  bring  up  his  family  there.  An  English  officer 
cannot  do  this  at  Ouetta  or  Multan.  The  English  race 
becomes  so  enfeebled  in  the  second  generation  by  liv- 
ing without  respite  under  the  Indian  sun  that  it  would 
probably  die  out,  at  least  in  the  plains,  in  the  third 
or  fourth.  Few  Englishmen  feel  disposed  to  make 
India  their  home,  if  only  because  the  physical  condi- 
tions of  life  there  are  so  different  from  those  under 
which  their  earlier  years  were  passed.  But  the  Italian 
could  make  himself  at  home,  so  far  as  natural  condi- 
tions went,  almost  anywhere  from  the  Dnieper  to  the 
Guadalquivir. 

The  second  contrast  is  in  the  colour  of  the  races. 
All  the  races  of  India  are  dark,  though  individuals  may 
be  found  among  high-caste  Brahmins  and  among  the 


54  HOMAS    A\D   UlilTlUJI    KUPIRKX 

Parsis  of  Poona  or  Gujarat  who  are  as  light  in  hue  as 
many  Englishmen.  Now  to  the  Teutonic  peoples,  and 
especially  to  the  English  and  Anglo-Americans,  the 
difference  of  colour  means  a  great  deal.  It  creates  a 
feeling  of  separation,  perhaps  even  of  a  slight  repul- 
sion. Such  a  feeling  may  be  deemed  unreasonable 
or  unchristian,  but  it  seems  too  deeply  rooted  to  be 
effaceable  in  any  time  we  can  foresee.  It  is,  to  be 
sure,  not  nearly  so  strong  towards  members  of  the 
more  civilized  races  of  India,  with  their  faces  often  full 
of  an  intelligence  and  refinement  which  witnesses  to 
many  generations  of  mental  culture,  as  it  is  in  North 
America  towards  the  negroes  of  the  Gulf  Coast,  or  in 
South  Africa  towards  the  Kafirs.  Yet  it  is  sufficient  to 
be,  as  a  rule,  a  bar  to  social  intimacy,  and  a  complete 
bar  to  intermarriage. 

Among  the  highest  castes  of  Hindus  and  among  the 
most  ancient  princely  families,  such  as  those  famous 
Rajput  dynasties  whose  lineage  runs  back  further  than 
does  that  of  any  of  the  royal  houses  of  Europe,  there  is 
a  corresponding  pride  of  race  quite  as  strong  as  that 
felt  by  the  best-born  European.  So,  too,  some  of  the 
oldest  Musulman  families,  tracing  their  origin  to  the 
relatives  of  the  Prophet  himself,  are  in  respect  of  long 
descent  equal  to  any  European  houses.  Nevertheless, 
although  the  more  educated  and  tactful  among  the 
English  pay  due  honour  to  these  families,  colour  would 
form  an  insurmountable  barrier  to  intermarriage,  even 
were  the  pride  of  the  Rajputs  disposed  to  invite  it. 
The  oldest  of  the  Rajput  dynasties,  that  of  Udaipur, 
always  refused  to  give  a  daughter  in  marriage  even 
to  the  Mogul  Emperors. 

There  was  no  severing  line  like  this  in  the  ancient 
world.  The  only  dark  races  (other  than  the  Egyptians) 
with  whom  the  Romans  came  in  contact  were  some 
of  the  Numidian  tribes,  few  of  whom  became  really 
Romanized,  and  the  Nubians  of  the  Middle  Nile,  also 
scarcely  within  the  pale  of  civilization.     The  question, 


ROMAN  AND  BRITISH  EMPIRES  55 

therefore,  did  not  arise  in  the  form  it  has  taken  in  India. 
Probably,  however,  the  Romans  would  have  felt  and 
acted  not  like  Teutons,  but  rather  as  the  Spanish  and 
Portuguese  have  done.  Difference  of  colour  does  not 
repel  members  of  these  last-named  nations.  Among 
them,  unions,  that  is  to  say  legitimate  unions,  of  whites 
with  dark-skinned  people,  are  not  uncommon,  nor  is  the 
mulatto  or  quadroon  offspring  kept  apart  and  looked 
down  upon  as  he  is  among  the  Anglo-Americans. 
Nothing  contributed  more  to  the  fusion  of  the  races 
and  nationalities  that  composed  the  Roman  Empire 
than  the  absence  of  any  physical  and  conspicuous 
distinctions  between  those  races,  just  as  nothing  did 
more  to  mitigate  the  horrors  of  slavery  than  the  fact 
that  the  slave  was  usually  of  a  tint  and  type  of  features 
not  markedly  unlike  those  of  his  master.  Before  the 
end  of  the  Republic  there  were  many  freedmen  in  the 
Senate,  though  their  presence  there  was  regarded  as 
a  sign  of  declension.  The  son  of  a  freedman  passed 
naturally  and  easily — as  did  the  poet  Horace — into  the 
best  society  of  Rome  when  his  personal  merits  or  the 
favour  of  a  great  patron  gave  him  entrance,  though  his 
detractors  found  pleasure  in  reminding  one  another  of 
his  origin.  In  India  it  is  otherwise.  Slavery,  which 
was  never  harsh  there,  has  fortunately  not  come  into 
the  matter,  in  the  way  it  did  in  the  Southern  States 
of  America  and  in  South  Africa.  But  the  population 
is  sharply  divided  into  whites  and  natives.  The  so- 
called  Eurasians,  a  mixed  race  due  to  the  unions  of 
whites  with  persons  of  Indian  race,  give  their  sym- 
pathies to  the  whites,  but  are  treated  by  the  latter  as 
an  inferior  class.  They  are  not  numerous  enough  to 
be  an  important  factor,  nor  do  they  bridge  over  the 
chasm  which  divides  the  rulers  from  the  ruled.  It  is 
not  of  the  want  of  political  liberty  that  the  latter  com- 
plain, for  political  liberty  has  never  been  enjoyed  in 
the  East,  and  would  not  have  been  dreamt  of  had  not 
English   literature   and   English   college    teaching   im- 


50  110UAX   AXD   llh'lTiail    EMPIRBB 

planted  the  idea  in  the  minds  of  the  educated  natives. 
But  the  hauteur  of  the  English  and  the  sense  of  social 
incompatibility  which  both  elements  feel,  are  unfortu- 
nate features  in  the  situation,  and  have  been  so  from 
the  first.  Even  in  1813  the  representatives  of  the  East 
India  Company  stated  to  a  committee  of  the  House  of 
Commons  that  '  Englishmen  of  classes  not  under  the 
observation  of  the  supreme  authorities  were  notorious 
for  the  contempt  with  which,  in  their  ignorance  and 
arrogance,  they  contemplated  the  usages  and  institu- 
tions of  the  natives,  and  for  their  frequent  disregard  of 
justice  and  humanity  in  their  dealings  with  the  people 
of  India1/  And  the  Act  of  1833  requires  the  Govern- 
ment of  India  '  to  provide  for  the  protection  of  the 
natives  from  insult  and  outrage  in  their  persons,  reli- 
gions, and  opinions  V 

It  may  be  thought  that,  even  if  colour  did  not  form 
an  obstacle  to  intermarriage,  religion  would.  Religion, 
however,  can  be  changed,  and  colour  cannot.  In  North 
America  blacks  and  whites  belong  to  the  same  religious 
denominations,  but  the  social  demarcation  remains  com- 
plete. Still  it  is  true  that  the  difference  of  religion  does 
constitute  in  India  a  further  barrier  not  merely  to  inter- 
marriage but  also  to  intimate  social  relations.  Among 
the  Musulmans  the  practice,  or  at  any  rate  the  legal 
possibility  of  polygamy,  naturally  deters  white  women 
from  a  union  they  might  otherwise  have  contemplated. 
(There  have,  however,  been  a  few  instances  of  such 
unions.)  Hinduism  stands  much  further  away  from 
Christianity  than  does  Islam;  and  its  ceremonial  rules 
regarding  the  persons  in  whose  company  food  may  be 
partaken  of  operate  against  a  form  of  social  intercourse 
which  cements  intimacy  among  Europeans*. 

One  must  always  remember  that  in  the  East  religion 
constitutes  both  a  bond  of  union  and  a   dividing  line 

*  See  Ilbert's  Government  of  India,  p.  77.  2  Itiid.  p.  91. 

3  The  number  of  Hindus  in  all  India  is  estimated  at  207  millions,  that  of  Musul- 
mans at  fifty-seven  millions,  aboriginal  races  nine  millions,  Christians  two  mil- 
lions. 


ROMAN  AND  BRITISH  EMPIRES  57 

of  severance  far  stronger  and  deeper  than  it  does  in 
Western  Europe.  It  largely  replaces  that  national 
feeling  which  is  absent  in  India  and  among  the  Eastern 
peoples  (except  the  Chinese  and  Japanese)  generally. 
Among  Hindus  and  Musulmans  religious  practices  are 
inwoven  with  a  man's  whole  life.  To  the  Hindu  more 
especially  caste  is  everything.  It  creates  a  sort  of  nation- 
ality within  a  nationality,  dividing  the  man  of  one  caste 
from  the  man  of  another,  as  well  as  from  the  man 
who  stands  outside  Hinduism  altogether.  Among  Mus- 
lims there  is  indeed  no  regular  caste  (though  evident 
traces  of  it  remain  among  the  Muhamadans  of  India) ; 
but  the  haughty  exclusiveness  of  Islam  keeps  its  vo- 
taries quite  apart  from  the  professors  of  other  faiths. 
The  European  in  India,  when  he  converses  with  either 
a  Hindu  or  a  Musulman,  feels  strongly  how  far  away 
from  them  he  stands.  There  is  always  a  sense  of 
constraint,  because  both  parties  know  that  a  whole 
range  of  subjects  lies  outside  discussion,  and  must 
not  be  even  approached.  It  is  very  different  when 
one  talks  to  a  native  Christian  of  the  upper  ranks. 
There  is  then  no  great  need  for  reserve  save,  of 
course,  that  the  racial  susceptibilities  of  the  native 
gentleman  who  does  not  belong  to  the  ruling  class 
must  be  respected.  Community  of  religion  in  carry- 
ing the  educated  native  Christian  far  away  from  the 
native  Hindu  or  Muslim,  brings  him  comparatively 
near  to  the  European.  Because  he  is  a  Christian  he 
generally  feels  himself  more  in  sympathy  with  his  Euro- 
pean rulers  than  he  does  with  his  fellow  subjects  of  the 
same  race  and  colour  as  himself. 

Here  I  touch  a  matter  of  the  utmost  interest  when 
one  thinks  of  the  more  remote  future  of  India.  Political 
consequences  greater  than  now  appear  may  depend 
upon  the  spread  of  Christianity  there,  a  spread  whose 
progress,  though  at  present  scarcely  perceptible  in  the 
upper  classes,  may  possibly  become  much  more  rapid 
than  it  has  been  during  the  last  century.     I  do  not 


58  ROMAN  AND  BRITISH   EMPIRES 

say  that  Hinduism  or  Islam  is  a  cause  of  hostility  to 
British  rule.  Neither  do  1  suggest  that  a  Christian 
native  population  would  become  fused  with  the  Euro- 
pean or  Eurasian  population.  But  if  the  number  of 
Christians,  especially  in  the  middle  and  upper  ranks 
of  Indian  society,  were  to  increase,  the  difficulty  of 
ascertaining  native  opinion,  now  so  much  felt  by  In- 
dian administrators,  would  be  perceptibly  lessened,  and 
the  social  separation  of  natives  and  Europeans  might 
become  less  acute,  to  the  great  benefit  of  both  sections 
of  the  population. 

When  we  turn  back  to  the  Roman  Empire  how  strik- 
ing is  the  absence  of  any  lines  of  religious  demarca- 
tion !  One  must  not  speak  of  toleration  as  the  note  of 
its  policy,  because  there  was  nothing  to  tolerate.  All 
religions  were  equally  true,  or  equally  useful,  each  for 
its  own  country  or  nation.  The  satirist  of  an  age  which 
had  already  lost  belief  in  the  Olympian  deities  might 
scoff  at  the  beast-gods  of  Egypt  and  the  fanaticism  which 
their  worship  evoked.  But  nobody  thought  of  convert- 
ing the  devotees  of  crocodiles  or  cats.  A  Briton  brought 
up  by  the  Druids,  or  a  Frisian  who  had  worshipped 
Woden  in  his  youth,  found,  if  he  was  sent  to  command  a 
garrison  in  Syria,  no  difficulty  in  attending  a  sacrifice  to 
the  Syrian  Sun-god,  or  in  marrying  the  daughter  of  the 
Sun-god's  priest.  Possibly  the  first  injunctions  to  have 
regard  to  religion  in  choosing  a  consort  that  were  ever 
issued  in  the  ancient  world  were  such  as  that  given  by 
St.  Paul  when  he  said, '  Be  not  unequally  yoked  together 
with  unbelievers.'  Christianity  had  a  reason  for  this 
precept  which  the  other  religions  had  not,  because  to  it 
all  the  other  religions  were  false  and  pernicious,  draw- 
ing men  away  from  the  only  true  God.  We  may  ac- 
cordingly say  that,  old-established  and  strong  as  some 
of  the  religions  were  which  the  Romans  found  when  they 
began  to  conquer  the  Mediterranean  countries,  religion 
did  not  constitute  an  obstacle  to  the  fusion  of  the  peo- 
ples of  those  countries  into  one  Roman  nationality. 


ROMAN  AND  BRITISH  EMPIRES  59 

When  the  Monotheistic  religions  came  upon  the  scene, 
things  began  to  change.  Almost  the  only  rebellions 
against  Rome  which  were  rather  religious  than  political, 
were  those  of  the  Jews.  When  in  the  fourth,  fifth,  sixth, 
and  seventh  centuries,  sharp  theological  controversies 
began  to  divide  Christians,  especially  in  the  East, 
dangers  appeared  such  as  had  never  arisen  from  reli- 
gious causes  in  the  days  of  heathenism.  Schisms,  like 
that  of  the  Donatists,  and  heresies,  began  to  trouble 
the  field  of  politics.  The  Arian  Goths  and  Vandals 
remained  distinct  from  the  orthodox  provincials  whom 
they  conquered.  In  Egypt,  a  country  always  prone  to 
fanaticism,  the  Monophysite  antagonism  to  the  ortho- 
doxy of  the  Eastern  Emperors  was  so  bitter  that  the 
native  population  showed  signs  of  disaffection  as  early 
as  the  time  of  Justinian,  and  they  offered,  a  century 
later,  scarcely  any  resistance  to  those  Musulman  in- 
vaders from  Arabia  whom  they  disliked  no  more  than 
they  did  their  own  sovereign  at  Constantinople. 

A  fourth  agency  working  for  fusion  which  the  Roman 
Empire  possessed,  and  which  the  English  in  India  want, 
is  to  be  found  in  language  and  literature.  The  con- 
quests of  Rome  had  been  preceded  by  the  spread  of 
the  Greek  tongue  and  of  Greek  culture  over  the  coasts 
of  the  Eastern  Mediterranean.  Even  in  the  interior  of 
Asia  Minor  and  Syria,  though  the  native  languages 
continued  to  be  spoken  in  the  cities  as  late  as  the  time 
of  Tiberius  1,  and  probably  held  their  ground  in  country 
districts  down  till  the  Arab  conquest,  Greek  was  under- 
stood by  the  richer  people,  and  was  a  sort  of  lingua 
franca  for  commerce  from  Sicily  to  the  Euphrates  -. 
Greek  literature  was  the  basis  of  education,  and  formed 
the  minds  of  the  cultivated  class.  It  was  indeed  familiar 
to  that  class  even  in  the  western  half  of  the  Empire, 
through  which,  by  the  time  of  the  Antonines,  Latin  had 

1  As  in  Lycaonia  ;  cf.  Acts  xiv. 

2  There  is  a  curious  story  that  when  the  head  of  Crassus  was  brought  to  the 
Parthian  king  a  passage  from  the  Bacchae  of  Euripides  was  recited  by  a  Greek 
who  was  at  the  Court. 


60  WOMAN  AND  BRITISH    UMl'l  1! /•; tf 

begun  to  be  generally  spoken,  except  in  remote  regions 
such  as  the  Basque  country  and  the  banks  of  the  \  aal 
and  North-Western  Gaul.  As  the  process  of  unifi- 
cation usually  works  downwards  from  the  wealthier 
and  better  educated  to  the  masses,  it  was  of  the  utmost 
consequence  that  the  upper  class  should  have,  in  these 
two  great  languages,  a  factor  constantly  operative  in  the 
assimilation  of  the  ideas  of  peoples  originally  distinct, 
in  the  diffusion  of  knowledge,  and  in  the  creation  of  a 
common  type  of  civilization.  Just  as  the  use  of  Latin 
and  of  the  Vulgate  maintained  a  sort  of  unity  among 
Christian  nations  and  races  even  in  the  darkest  and  most 
turbulent  centuries  of  the  Middle  Ages,  so  the  use  of 
Latin  and  Greek  throughout  the  whole  Roman  Empire 
powerfully  tended  to  draw  its  parts  together.  Nor  was 
it  without  importance  that  all  the  subjects  of  the  Empire 
had  the  same  models  of  poetic  and  prose  style  in  the 
classical  writers  of  Greece  and  in  the  Latin  writers  of  the 
pre-Augustan  and  Augustan  age.  Virgil  in  particular 
became  the  national  poet  of  the  Empire,  in  whom  impe- 
rial patriotism  found  its  highest  expression. 

Very  different  have  been  the  conditions  of  India. 
When  the  British  came,  they  found  no  national  litera- 
ture, unless  we  can  apply  that  name  to  the  ancient 
Sanskrit  epics,  written  in  a  tongue  which  had  ceased 
to  be  spoken  many  centuries  before.  Persian  and 
Arabic  were  cultivated  languages,  used  by  educated 
Musulmans  and  by  a  few  Hindu  servants  of  the  Musul- 
man  princes.  The  lingua  franca  called  Hindustani  or 
I  'rdu,  which  had  sprung  up  in  the  camps  of  the  Mogul 
Emperors,  was  becoming  a  means  of  intercourse  over 
Northern  India,  but  was  hardly  used  throughout  the 
South.  Only  a  handful  of  the  population  were  suf- 
ficiently educated  to  be  accessible  to  the  influences 
of  any  literature,  or  spoke  any  tongue  except  that  of 
their  own  district.  At  present  five  great  languages1, 
branches    of   the    Aryan    family,    divide    between    them 

1  Hindi,  HcnRali,  Marathi,  Punjabi,  and  Gujarati. 


ROMAN  AM)   BRITISH  EMPIRES  61 

Northern,  North-Western,  and  Middle  India,  and  four 
others  *  of  the  Dravidian  type  cover  Southern  India : 
while  many  others  are  spoken  by  smaller  sections  of  the 
people.  The  language  of  the  English  conquerors,  which 
was  adopted  as  the  official  language  in  1835,  is  the  parent 
tongue  of  only  about  250,000  persons  out  of  287,000,000, 
less  than  one  in  one  thousand.  An  increasing  number 
of  natives  of  the  educated  class  have  learnt  to  speak  it, 
but  even  if  we  reckon  in  these,  it  affects  only  the  most 
insignificant  fraction  of  the  population.  I  have  already 
observed  that  it  was  an  advantage  for  England  in 
conquering  India,  and  is  an  advantage  for  her  in  ruling 
it,  that  the  inhabitants  are  so  divided  by  language  as  well 
as  by  religion  and  (among  the  Hindus)  by  caste  that  they 
could  not  combine  to  resist  her.  Rome  had  enjoyed,  in 
slighter  measure,  a  similar  advantage.  But  whereas  in 
the  Roman  Empire  Greek  and  Latin  spread  so  swiftly  and 
steadily  that  the  various  nationalities  soon  began  to 
blend,  the  absence  in  India  of  any  two  such  dominant 
tongues  and  the  lower  level  of  intellectual  progress  keep 
the  vast  bulk  of  the  Indian  population  without  any  gene- 
ral vehicle  for  the  interchange  of  thought  or  for  the  for- 
mation of  any  one  type  of  literary  and  scientific  culture. 
There  is  therefore  no  national  literature  for  India,  nor 
any  prospect  that  one  will  arise.  No  Cicero  forms 
prose  style,  no  Virgil  inspires  an  imperial  patriotism. 
The  English  have  established  places  of  higher  instruc- 
tion on  the  model  not  so  much  of  Oxford  and  Cam- 
bridge as  of  the  Scottish  Universities  and  the  new 
University  Colleges  which  have  recently  sprung  up 
in  England,  together  with  five  examining  Universities. 
Through  these  institutions  they  are  giving  to  the 
ambitious  youth  of  India,  and  especially  to  those  who 
wish  to  enter  Government  employment  or  the  learned 
professions,  an  education  of  a  European  type,  a  type 
so  remote  from  the  natural  quality  and  proclivities 
of  the  Indian  mind  that  it  is  not  likely  to  give  birth 

9  Telugu,  Tamil,  Kanarese,  Malayalam. 


63  ROMAN  AND  BRITISH  EMPIRES 

to  any  literature  with  a  distinctively  Indian  character. 
Indeed  the  chief  effect  of  this  instruction  has  so  far  been 
to  make  those  who  receive  it  cease  to  be  Hindus  or 
Musulmans  without  making  them  either  Christians  or 
Europeans.  It  acts  as  a  powerful  solvent,  destroying  the 
old  systems  of  conventional  morality,  and  putting  little 
in  their  place.  The  results  may  not  be  seen  for  a  gene- 
ration or  two.  When  they  come  they  may  prove  far 
from  happy. 

If  in  the  course  of  ages  any  one  language  comes 
to  predominate  in  India  and  to  be  the  language  not 
only  of  commerce,  law,  and  administration,  but  also  of 
literature,  English  is  likely  to  be  that  language ;  and 
English  will  by  that  time  have  also  become  the  leading 
language  of  the  world1.  This  will  tend  both  to  unify 
the  peoples  of  India  and  (in  a  sense)  to  bring  them 
nearer  to  their  rulers.  By  that  time,  however,  if  it  ever 
arrives,  so  many  other  changes  will  also  have  arrived 
that  it  is  vain  to  speculate  on  the  type  of  civilization 
which  will  then  have  been  produced. 

These  considerations  have  shown  us  how  different 
have  been  the  results  of  English  from  those  of  Roman 
conquest.  In  the  latter  case  a  double  process  began 
from  the  first.  The  provinces  became  assimilated  to 
one  another,  and  Rome  became  assimilated  to  them,  or 
they  to  her.  As  her  individuality  passed  to  them  it  was 
diluted  by  their  influence.  Out  of  the  one  conquering 
race  and  the  many  conquered  races  there  was  growing  up 
a  people  which,  though  many  local  distinctions  remained, 
was  by  the  end  of  the  fourth  century  a.  n.  tending  to  be- 
come substantially  one  in  religion,  one  in  patriotism,  one 
in  its  type  of  intellectual  life  and  of  material  civilization. 
The  process  was  never  completed,  because  the  end  of 
the  fourth  century  was  just  the  time  when  the  Empire 
began,   not    from   any   internal   dissensions,   but    from 

1  It  is  estimated  that  English  is  at  present  spoken  by  about  115  millions  of  per- 
sons, Russian  by  80  millions,  German  by  70,  Spanish  by  50,  French  by  45.  Of 
these  English  is  increasing  the  most  swiftly,  Russian  next,  and  then  German. 


ROMAN  AND  BRITISH  EMPIRES  63 

financial  and  military  weakness,  to  yield  to  invasions  and 
immigrations  which  forced  its  parts  asunder.  But  it  was 
so  far  completed  that  Claudian  could  write  in  the  days 
of  Honorius :  '  We  who  drink  of  the  Rhone  and  the 
Orontes  are  all  one  nation.'  In  this  one  huge  nation 
the  city  and  people  of  Rome  had  been  merged,  their 
original  character  so  obliterated  that  they  could  give 
their  name  to  the  world.  But  in  India  there  has  been 
neither  a  fusion  of  the  conquerors  and  the  conquered, 
nor  even  a  fusion  of  the  various  conquered  races  into 
one  people.  Differences  of  race,  language,  and  religion 
have  prevented  the  latter  fusion :  yet  it  may  some  day 
come.  But  a  fusion  of  conquerors  and  conquered 
seems  to  be  forbidden  by  climate  and  by  the  disparity 
of  character  and  of  civilization  as  well  as  by  antago- 
nisms of  colour  and  religion.  The  English  are  too 
unlike  the  races  of  India,  or  any  one  of  those  races,  to 
mingle  with  them,  or  to  come  to  form,  in  the  sense  of 
Claudian's  words,  one  people. 

The  nations  and  tribes  that  were  overcome  and 
incorporated  by  Rome  were  either  the  possessors  of  a 
civilization  as  old  and  as  advanced  as  was  her  own,  or 
else,  like  the  Gauls  and  the  Germans,  belonged  to  stocks 
full  of  intellectual  force,  capable  of  receiving  her  lessons, 
and  of  rapidly  rising  to  the  level  of  her  culture.  But  the 
races  of  India  were  all  of  them  far  behind  the  English 
in  material  civilization.  Some  of  them  were  and  are 
intellectually  backward;  others,  whose  keen  intelligence 
and  aptitude  for  learning  equals  that  of  Europeans,  are 
inferior  in  energy  and  strength  of  will.  Yet  even  these 
differences  might  not  render  an  ultimate  fusion  impos- 
sible. It  is  religion  and  colour  that  seem  to  place  that 
result  beyond  any  horizon  to  which  our  eyes  can  reach. 
The  semi-barbarous  races  of  Southern  Siberia  will 
become  Russians.  The  Georgians  and  Armenians  of 
Transcaucasia,  unless  their  attachment  to  their  national 
churches  saves  them,  may  become  Russians.  Even  the 
Turkmans  of  the  Khanates  will  be  Russians  one  day,  as 


64  ROMAN  AND  BRITISH  EMPIRES 

the  Tatars  of  Kazan  and  the  Crimea  arc  already  on  the 
way  to  become.  But  the  English  seem  destined  to  re- 
main quite  distinct  from  the  natives  of  India,  neither 
mingling  their  blood  nor  imparting  their  character  and 
habits. 

So  too,  it  may  be  conjectured,  there  will  not  be,  for 
ages  to  come,  any  fusion  of  Americans  with  the  races 
of  the  Philippine  Isles. 

The  observation  that  Rome  effaced  herself  in  giving 
her  name  and  laws  to  the  world  suggests  an  inquiry 
into  what  may  be  called  the  retroactive  influence  of  India 
upon  England.  In  the  annals  of  Rome,  war,  conquest, 
and  territorial  expansion  pervade  and  govern  the  whole 
story.  Her  constitutional,  her  social,  her  economic 
history,  from  the  end  of  the  Samnite  wars  onwards,  is 
substantially  determined  by  her  position  as  a  ruling 
State,  first  in  Italy  and  then  in  the  Mediterranean  world. 
It  was  the  influence  upon  the  City  of  the  phenomena 
of  her  rule  in  the  provinces  that  did  most  to  destroy 
not  only  the  old  constitution  but  the  old  simple  and 
upright  character  of  the  Roman  people.  The  pro- 
vinces avenged  themselves  upon  their  conquerors.  In 
the  end,  Rome  ceases  to  have  any  history  of  her  own, 
except  an  architectural  history,  so  completely  is  she 
merged  in  her  Empire.  To  a  great  extent  this  is  true 
of  Italy  as  well  as  of  Rome.  Italy,  which  had  subjected 
so  many  provinces,  ends  by  becoming  herself  a  province 
— a  province  no  more  important  than  the  others,  except 
in  respect  of  the  reverence  that  surrounded  her  name. 
Her  history,  from  the  time  of  Augustus  till  that  of 
Odovaker  and  Theodorich  the  Ostrogoth,  is  only  a  part 
of  the  history  of  the  Empire.  Quite  otherwise  with 
England.  Though  England  has  founded  many  colonies, 
sent  out  vast  bodies  of  emigrants,  and  conquered  wide 
dominions,  her  domestic  history  has  been,  since  she 
lost  Normandy  and  Aquitaine,  comparatively  little 
affected  by  these  frequent  wars  and  this  immense  ex- 
pansion.    One  might  compose  a  constitutional  history 


ROMAN  AND  BRITISH  EMPIRES  65 

of  England,  or  an  economic  and  industrial  history,  or  an 
ecclesiastical  history,  or  a  literary  history,  or  a  social  his- 
tory, in  which  only  few  and  slight  references  would  need 
to  be  made  to  either  the  colonies  or  India.  England  was 
a  great  European  power  before  she  had  any  colonies  or 
any  Indian  territories:  and  she  would  be  a  great  Euro- 
pean power  if  all  of  these  transmarine  possessions  were 
to  drop  off.  Only  at  a  few  moments  in  the  century  and  a 
half  since  the  battle  of  Plassy  have  Indian  affairs  gravely 
affected  English  politics.  Every  one  remembers  Fox's 
India  Bill,  in  1783,  and  the  trial  of  Warren  Hastings, 
and  the  way  in  which  the  Nabobs  seemed  for  a  time  to 
be  demoralizing  society  and  politics.  It  was  in  India 
that  the  Duke  of  Wellington  first  showed  his  powers. 
It  was  through  the  Indian  opium  trade  that  England  first 
came  into  collision  with  China.  The  notion  that  Russian 
ambition  might  become  dangerous  to  the  security  of 
Britain  in  India  had  something  to  do  with  the  Crimean 
War,  and  with  the  subsequent  policy  towards  the  Turks 
followed  by  England  down  to  1880.  The  deplorable 
Afghan  War  of  1878-9  led,  more  perhaps  than  anything 
else,  to  the  fall  of  Lord  Beaconsfield's  Ministry  in  1880. 
Other  instances  might  be  added  in  which  Indian  ques- 
tions have  told  upon  the  foreign  policy  of  Great  Britain, 
or  have  given  rise  to  parliamentary  strife ;  although,  by 
a  tacit  convention  between  the  two  great  parties  in  Eng- 
land, efforts  are  usually  made — and  made  most  wisely — 
to  prevent  questions  of  Indian  administration  from  be- 
coming any  further  than  seems  absolutely  necessary 
matters  of  party  controversy.  Yet,  if  these  instances  be 
all  put  together,  they  are  less  numerous  and  momentous 
than  might  have  been  expected  when  one  considers  the 
magnitude  of  the  stake  which  Britain  holds  in  India.  And 
even  when  we  add  to  these  the  effect  of  Indian  markets 
upon  British  trade,  and  the  undeniable  influence  of  the 
possession  of  India  upon  the  thoughts  and  aspirations 
of  Englishmen,  strengthening  in  them  a  sense  of  pride 
and  what  is  called  an  imperial  spirit,  we  shall  still  be 


66  ROMAN   AND   BRITISH  EMPIRES 

surprised  that  the  control  of  this  vast  territory  and  of 
a  population  more  than  seven  times  as  large  as  that  of 
the  United  Kingdom  has  not  told  more  forcibly  upon 
Britain,  and  coloured  her  history  more  deeply  than 
it  has  in  fact  done.  Suppose  that  England  had  not 
conquered  India.  Would  her  domestic  development, 
whether  constitutional  or  social,  have  taken  a  course 
greatly  different  from  that  which  it  has  actually  fol- 
lowed? So  far  as  we  can  judge,  it  would  not.  It  has  been 
the  good  fortune  of  England  to  stand  far  off  from  the 
conquered  countries,  and  to  have  had  a  population  too 
large  to  suffer  sensibly  from  the  moral  evils  which 
conquest  and  the  influx  of  wealth  bring  in  their  train1. 

The  remark  was  made  at  the  outset  of  this  discussion 
that  the  contact  of  the  English  race  with  native  races 
in  India,  and  the  process  by  which  the  former  is  giving 
the  material  civilization,  and  a  tincture  of  the  intellec- 
tual culture  of  Europe  to  a  group  of  Asiatic  peoples, 
is  only  part  of  that  contact  of  European  races  with 
native  races  and  of  that  Europeanizing  of  the  latter  by 
the  former  which  is  going  on  all  over  the  world.  France 
is  doing  a  similar  work  in  North  Africa  and  Madagascar. 
Russia  is  doing  it  in  Turkistan  and  on  the  Amur ;  and 
may  probably  be  soon  engaged  upon  it  in  Manchuria. 
Germany  is  doing  it  in  tropical  Africa.  England  is 
doing  it  in  Egypt  and  Borneo  and  Matabililand.  The 
people  of  the  United  States  are  entering  upon  it  in  the 
Philippine  Islands.  Every  one  of  these  nations  pro- 
fesses to  be  guided  by  philanthropic  motives  in  its  action. 
But  it  is  not  philanthropy  that  has  carried  any  of  them 
into  these  enterprises,  nor  is  it  clear  that  the  result  will 
be  to  increase  the  sum  of  human  happiness. 

It  is  in  India,  however,  that  the  process  has  been  in 
progress  for  the  longest  time  and  on  the  largest  scale. 
Even  after  a  century's  experience  the  results  cannot 
be   adequately  judged,   for   the   country   is   in   a   state 

1  The  absence  of  slavery  and  the  existence  of  Christianity  will  of  course  present 
themselves  to  every  one's  mind  as  other  factors  in  differentiating  the  conditions 
of  the  modern  from  those  of  the  Roman  world. 


ROMAN  AND  BRITISH  EMPIRES  67 

of  transition,  with  all  sorts  of  new  factors,  such  as  rail- 
ways, and  newspapers,  and  colleges,  working  as  well 
upon  the  humbler  as  upon  the  wealthier  sections  of  the 
people.  Three  things,  however,  the  career  of  the  Eng- 
lish in  India  has  proved.  One  is,  that  it  is  possible 
for  a  European  race  to  rule  a  subject  native  race  on 
principles  of  strict  justice,  restraining  the  natural  pro- 
pensity of  the  stronger  to  abuse  their  power.  India 
has  been,  and  is,  ruled  upon  such  principles.  When 
oppression  or  cruelty  is  perpetrated,  it  is  not  by  the 
European  official  but  by  his  native  subordinates,  and 
especially  by  the  native  police,  whose  delinquencies  the 
European  official  cannot  always  discover.  Scorn  or 
insolence  is  sometimes  displayed  towards  the  natives  by 
Europeans,  and  nothing  does  more  to  destroy  the  good 
effects  of  just  government  than  such  displays  of  scorn. 
But  again,  it  is  seldom  the  European  civil  officials,  but 
either  private  persons  or  occasionally  junior  officers 
in  the  army,  who  are  guilty  of  this  abuse  of  their  racial 
superiority. 

The  second  thing  is  that  a  relatively  small  body  of 
European  civilians,  supported  by  a  relatively  small  armed 
force,  can  maintain  peace  and  order  in  an  immense 
population  standing  on  a  lower  plane  of  civilization,  and 
itself  divided  by  religious  animosities  bitter  enough  to 
cause  the  outbreak  of  intestine  wars  were  the  restrain- 
ing hand  withdrawn. 

The  third  fact  is  that  the  existence  of  a  system  securing 
these  benefits  is  compatible  with  an  absolute  separation 
between  the  rulers  and  the  ruled.  The  chasm  between 
them  has  in  these  hundred  years  of  intercourse  grown 
no  narrower.  Some  even  deem  it  wider,  and  regret  the 
fact  that  the  European  official,  who  now  visits  England 
more  easily  and  frequently,  does  not  identify  himself 
so  thoroughly  with  India  as  did  his  predecessors  some 
seventy  years  ago.  As  one  of  the  greatest  problems  of 
this  age,  and  of  the  age  which  will  follow,  is  and  must  be 
the  relation  between  the  European  races  as  a  whole  on 


G8  ItOMAX    \M>    MtlTINII    EMPIRES 

the  one  hand,  and  the  more  backward  races  of  a  different 
colour  on  the  other  hand,  this  incompatibility  of  temper, 
this  indisposition  to  be  fused,  or,  one  may  almost  say, 
this  impracticability  of  fusion,  is  a  momentous  result, 
full  of  significance  for  the  future.  It  was  quite  otherwise 
with  that  first  effort  of  humanity  to  draw  itself  together, 
which  took  shape  in  the  fusion  of  the  races  that  Rome 
conquered,  and  the  creation  of  one  Greco-Roman  type 
of  civilization  for  them.  But  the  conditions  of  that  small 
ancient  world  were  very  different  from  those  by  which 
mankind  finds  itself  now  confronted. 

It  is  impossible  to  think  of  the  future  and  to  recall  that 
first  impluse  towards  the  unity  of  mankind  which  closed 
fourteen  centuries  ago,  without  reverting  once  more 
to  the  Roman  Empire,  and  asking  whether  the  events 
which  caused,  and  the  circumstances  which  accompanied, 
its  dissolution  throw  any  light  on  the  probable  fate  of 
British  dominion  in  the  East. 

Empires  die  sometimes  by  violence  and  sometimes 
by  disease.  Frequently  they  die  from  a  combination  of 
the  two,  that  is  to  say,  some  chronic  disease  so  reduces 
their  vitality  that  a  small  amount  of  external  violence 
suffices  to  extinguish  the  waning  life.  It  was  so  with  the 
dominion  of  Rome.  To  outward  appearance  it  was  the 
irruption  of  the  barbarians  from  the  north  that  tore  away 
the  provinces  in  the  west,  as  it  was  the  assault  of  the 
Turks  in  1453  that  gave  the  last  death  blow  to  the 
feeble  and  narrowed  Empire  which  had  lingered  on 
in  the  East.  But  the  dissolution  and  dismemberment 
of  the  western  Roman  Empire,  beginning  with  the 
abandonment  of  Britain  in  a.  d.  411,  and  ending  with  the 
establishment  of  the  Lombards  in  Italy  in  a.  d.  568, 
with  the  conquest  of  Africa  by  the  Arab  chief  Sidi  Okba 
in  the  seventh  century,  and  with  the  capture  of  Sicily 
by  Musulman  fleets  in  the  ninth,  were  really  due  to 
internal  causes  which  had  been  for  a  long  time  at 
work.  In  some  provinces  at  least  the  administration 
had  become   inefficient   or  corrupt,   and   the   humbler 


ROMAS  AXD  BRITISH  EMPIRES  60 

classes  were  oppressed  by  the  more  powerful.  The 
population  had  in  many  regions  been  diminished.  In 
nearly  all  it  had  become  unwarlike,  so  that  barbarian 
levies,  raised  on  the  frontier,  had  taken  the  place  of 
native  troops.  The  revenue  was  unequal  to  the  task  of 
maintaining  an  army  sufficient  for  defence.  How  far 
the  financial  straits  to  which  the  government  was  re- 
duced were  due  to  the  exhaustion  of  the  soil,  how  far 
to  maladministration  is  not  altogether  easy  to  determine. 
They  had  doubtless  been  aggravated  by  the  disorders 
and  invasions  of  a.  d.  260-282.  Neither  can  we  tell 
whether  the  intellectual  capacity  of  the  ruling  class  and 
the  physical  vigour  of  the  bulk  of  the  population  may  not 
have  declined.  But  it  seems  pretty  clear  that  the  armies 
and  the  revenue  that  were  at  the  disposal  of  Trajan 
would  have  been  sufficient  to  defend  the  Empire  three 
centuries  later,  when  the  first  fatal  blows  were  struck ; 
and  we  may  therefore  say  that  it  was  really  from  internal 
maladies,  from  anaemia  or  atrophy,  from  the  want  of 
men  and  the  want  of  money,  perhaps  also  from  the 
want  of  wisdom,  rather  than  from  the  appearance  of 
more  formidable  foes,  that  the  Empire  perished  in  the 
West. 

British  power  in  India  shows  no  similar  signs  of 
weakness,  for  though  the  establishment  of  internal 
peace  is  beginning  to  make  it  less  easy  to  recruit  the 
native  army  with  first-class  fighting-men,  such  as  the 
Punjab  used  to  furnish,  it  has  been  hitherto  found 
possible  to  keep  that  army  up  to  its  old  standard  of 
numbers  and  efficiency.  Still  the  warning  Rome  has 
bequeathed  is  a  warning  not  to  be  neglected.  Her  great 
difficulty  was  finance  and  the  impoverishment  of  the 
cultivator.  Finance  and  the  poverty  of  the  cultivator, 
who  is  always  in  danger  of  famine,  and  is  taxed  to  the 
full  measure  of  his  capacity — these  are  the  standing 
difficulties  of  Indian  administration;  and  they  do  not 
grow  less,  for,  as  population  increases,  the  struggle  for 
food  is  more  severe,  and  the  expenditure  on  frontier 


to  ttOMAH    AND  Hh'lilsii   UMPIRES 

defence,  including  strategic  railways,  has  gone  on  rapidly 
increasing. 

As  England  seems  to  be  quite  as  safe  from  rebellion 
within  India  as  was  Rome  within  her  Empire,  so  is  she 
stronger  against  external  foes  than  Rome  was,  for  she 
has  far  more  defensible  frontiers,  viz.  the  sea  which 
she  commands,  and  a  tremendous  mountain  barrier  in 
whose  barren  gorges  a  comparatively  small  force  might 
repel  invaders  coming  from  a  distance  and  obliged  to 
carry  their  food  with  them.  There  is  really,  so  far  as 
can  be  seen  at  present,  only  one  danger  against  which 
the  English  have  to  guard,  that  of  provoking  discontent 
among  their  subjects  by  laying  on  them  too  heavy  a 
burden  of  taxation.  It  has  been  suggested  that  when 
the  differences  of  caste  and  religion  which  now  separate 
the  peoples  of  India  from  one  another  have  begun  to 
disappear,  when  European  civilization  has  drawn  them 
together  into  one  people,  and  European  ideas  have 
created  a  large  class  of  educated  and  restless  natives 
ill  disposed  to  brook  subjection  to  an  alien  race,  new 
dangers  may  arise  to  threaten  the  permanence  of  British 
power.  Such  possibilities,  however,  belong  to  a  future 
which  is  still  far  distant. 

It  is,  of  course,  upon  England  in  the  last  resort  that 
the  defence  of  India  rests.  The  task  is  well  within  her 
strength,  though  serious  enough  to  make  it  fitting  that 
a  prudent  and  pacific  spirit  should  guide  her  whole 
foreign  and  colonial  policy,  that  she  should  neither  em- 
bark on  needless  wars  nor  lay  on  herself  the  burden 
of  holding  down  disaffected  subjects. 

England  must  be  prepared  to  command  the  sea,  and 
to  spare  80,000  of  her  soldiers  to  garrison  the  country. 
Were  she  ever  to  find  herself  unable  to  do  this,  what 
would  become  of  India?  Its  political  unity,  which  de- 
pends entirely  on  the  English  Raj,  would  vanish  like 
a  morning  mist.  Wars  would  break  out,  wars  of  am- 
bition, or  plunder,  or  religion,  which  might  end  in  the 
ascendency  of  a  few  adventurers,  not  necessarily  belong- 


ROMAN  AXD   BRITISH  EMPIRES  71 

ing  to  the  reigning  native  dynasties,  but  probably  either 
Pathans,  or  Sikhs,  or  Musulmans  of  the  north-west. 
The  Marathas  might  rise  in  the  West.  The  Nepalese 
might  descend  upon  Bengal.  Or  perhaps  the  country 
would,  after  an  interval  of  chaos,  pass  into  the  hands 
of  some  other  European  Power.  To  India  severance 
from  England  would  mean  confusion,  bloodshed,  and 
pillage.  To  England  however,  apart  from  the  par- 
ticular events  which  might  have  caused  the  snapping 
of  the  tie,  and  apart  from  the  possible  loss  of  a  market, 
severance  from  India  need  involve  no  lasting  injury. 
To  be  mistress  of  a  vast  country  whose  resources  for 
defence  need  to  be  supplemented  by  her  own,  adds 
indeed  to  her  fame,  but  does  not  add  to  her  strength. 
England  was  great  and  powerful  before  she  owned 
a  yard  of  land  there,  and  might  be  great  and  powerful 
again  with  no  more  foothold  in  the  East  than  would 
be  needed  for  the  naval  fortresses  which  protect  her 
commerce. 

Happily,  questions  such  as  these  are  for  the  moment 
purely  speculative. 


II 

THE  EXTENSION  OF  ROMAN  AND 

ENGLISH    LAW  THROUGHOUT 

THE  WORLD 

I.  The  Regions  covered  by  Roman  and  English  Law. 

From  a  general  comparison  of  Rome  and  England  as 
powers  conquering  and  administering  territories  beyond 
their  original  limits,  it  is  natural  to  pass  on  to  consider 
one  particular  department  of  the  work  which  territorial 
extension  has  led  them  to  undertake,  viz.  their  action  as 
makers  of  a  law  which  has  spread  far  out  over  the 
world.  Both  nations  have  built  up  legal  systems  which 
are  now — for  the  Roman  law  has  survived  the  Roman 
Empire,  and  is  full  of  vitality  to-day — in  force  over 
immense  areas  that  were  unknown  to  those  who  laid 
the  foundations  of  both  systems.  In  this  respect  Rome 
and  England  stand  alone  among  nations,  unless  we 
reckon  in  the  law  of  Islam  which,  being  a  part  of  the 
religion  of  Islam,  governs  Musulmans  wherever  Musul- 
mans  are  to  be  found. 

Roman  law,  more  or  less  modified  by  national  or 
local  family  customs  or  land  customs  and  by  modern 
legislation,  prevails  to-day  in  all  the  European  countries 
which  formed  part  either  of  the  ancient  or  of  the 
mediaeval  Roman  Empire,  that  is  to  say,  in  Italy,  in 
Greece  and  the  resl  of  South-Eastern  Europe  (so  far 
as  the  Christian  part  of  the  population  is  concerned), 


ltOMAX    AND   EXULIX11    LAW  73 

in  Spain,  Portugal,  Switzerland,  France,  Germany  (in- 
cluding the  German  and  Slavonic  parts  of  the  Austro- 
Hungarian  monarchy),  Belgium,  Holland.  The  only 
exception  is  South  Britain,  which  lost  its  Roman  law 
with  the  coming  of  the  Angles  and  Saxons  in  the  fifth 
century.  The  leading  principles  of  Roman  jurisprudence 
prevail  also  in  some  other  outlying  countries  which  have 
borrowed  much  of  their  law  from  some  one  or  more 
of  the  countries  already  named,  viz.  Denmark,  Norway, 
Sweden,  Russia,  and  Hungary.  Then  come  the  non- 
European  colonies  settled  by  some  among  the  above 
States,  such  as  Louisiana,  the  Canadian  province  of 
Quebec,  Ceylon,  British  Guiana,  South  Africa  (all  the 
above  having  been  at  one  time  colonies  either  of  France 
or  of  Holland),  German  Africa,  and  French  Africa,  to- 
gether with  the  regions  which  formerly  obeyed  Spain 
or  Portugal,  including  Mexico,  Central  America,  South 
America,  and  the  Philippine  Islands.  Add  to  these  the 
Dutch  and  French  East  Indies,  and  Siberia.  There  is 
also  Scotland,  which  has  since  the  establishment  of  the 
Court  of  Session  by  King  James  the  Fifth  in  1532  built 
up  its  law  out  of  Roman  Civil  and  (to  some  slight  extent) 
Roman  Canon  Law1. 

English  law  is  in  force  not  only  in  England,  Wales, 
and  Ireland  but  also  in  most  of  the  British  colonies. 
Quebec,  Ceylon,  Mauritius,  South  Africa,  and  some  few 
of  the  West  Indian  islands  follow  the  Roman  law  ~.  The 
rest,  including  Australia,  New  Zealand,  and  all  Canada 
except  Quebec,  follow  English ;  as  does  also  the  United 
States,  except  Louisiana,  but  with  the  Hawaiian  Islands, 
and  India,  though  in  India,  as  we  shall  see,  native  law 
is  also  administered. 

1  There  is  scarcely  a  trace  of  Celtic  custom  in  modern  Scottish  law.  The  law 
of  land,  however,  is  largely  of  feudal  origin  ;  and  commercial  law  has  latterly  been 
influenced  by  that  of  England. 

a  In  these  West  Indian  islands,  however,  that  which  remains  of  Spanish  law, 
as  in  Trinidad  and  Tobago,  and  of  French  law,  as  in  St.  Vincent,  is  now  compara- 
tively slight ;  and  before  long  the  West  Indies  (except  Cuba  and  Puerto  Rico, 
Guadeloupe  and  Martinique)  will  be  entirely  under  English  law.  See  as  to  the 
British  colonies  generally,  C.  P.  Ilbert's  Legislative  Methods  and  Forms,  chap.  ix. 


74  HOMAX    A\I>    IJXdLlSJl    LAW 

Thus  between  them  these  two  systems  cover  nearly  the 
whole  of  the  civilized,  and  most  of  the  uncivilized  world. 
Only  two  considerable  masses  of  population  stand  out- 
side— the  Musulman  East,  that  is,  Turkey,  North  Africa, 
Persia,  Western  Turkistan  and  Afghanistan,  which  obey 
the  sacred  law  of  Islam,  and  China,  which  has  customs 
all  her  own.  It  is  hard  to  estimate  the  total  number  of 
human  beings  who  live  under  the  English  common  law, 
for  one  does  not  know  whether  to  reckon  in  the  semi- 
savage  natives  of  such  regions  as  Uganda,  for  instance, 
or  Fiji.  But  there  are  probably  one  hundred  and  thirty 
millions  of  civilized  persons  (without  counting  the  na- 
tives of  India)  who  do :  and  the  number  living  under 
some  modern  form  of  the  Roman  law  is  still  larger. 

It  is  of  the  process  by  which  two  systems  which  had 
their  origin  in  two  small  communities,  the  one  an 
Italian  city,  the  other  a  group  of  Teutonic  tribes,  have 
become  extended  over  nine-tenths  of  the  globe  that 
I  propose  to  speak  in  the  pages  that  follow.  There  are 
analogies  between  the  forms  which  the  process  took  in 
the  two  cases.  There  are  also  contrasts.  The  main 
contrast  is  that  whereas  we  may  say  that  (roughly 
speaking)  Rome  extended  her  law  by  conquest,  that  is, 
by  the  spreading  of  her  power,  England  has  extended 
,  hers  by  settlement,  that  is,  by  the  spreading  out  of  her 
'race.  In  India,  however,  conquest  rather  than  coloniza- 
tion has  been  the  agency  employed  by  England,  and  it 
is  therefore  between  the  extension  of  English  law  to 
India  and  the  extension  of  Roman  law  to  the  Roman 
Empire  that  the  best  parallel  can  be  drawn.  It  need 
hardly  be  added  that  the  Roman  law  lias  been  far  more 
changed  in  descending  to  the  modern  world  and  becom- 
ing adapted  to  modern  conditions  of  life  than  the  law 
of  England  has  been  in  its  extension  over  new  areas. 
That  extension  is  an  affair  of  the  last  three  centuries 
only,  and  the  whole  history  of  English  law  is  of  only 
some  eleven  centuries  reckoning  from  Kings  Ine  ami 
Alfred,  let  us  say,  to  a.  d.  1900,  or  of  eight,  if  we  begin 


BOM  AN  AND   ENGLISH  LA1V  75 

with  King  Henry  the  Second,  whereas  that  of  Ronian 
law  covers  twenty-five  centuries,  of  which  all  but  the  first 
three  have  witnessed  the  process  of  extension,  so  early 
did  Rome  begin  to  impose  her  law  upon  her  subjects. 
To  the  changes,  however,  which  have  passed  on  the 
substance  of  the  law  we  shall  return  presently.  Let  us 
begin  by  examining  the  causes  and  circumstances  which 
induced  the  extension  to  the  whole  ancient  world  of 
rules  and  doctrines  that  had  grown  up  in  a  small  city. 

II.    The  Diffusion  of  Roman  Law  by  Conquest. 

The  first  conquests  of  Rome  were  made  in  Italy. 
They  did  not,  however,  involve  any  legal  changes,  for 
conquest  meant  merely  the  reduction  of  what  had  been 
an  independent  city  or  group  of  cities  or  tribes  to 
vassalage,  with  the  obligation  of  sending  troops  to  serve 
in  the  Roman  armiesr~y-i_,ocal  autonomy  was  not  (as 
a  rule)  interfered  with;  arid  such  autonomy  included 
civil  jurisdiction,  so  the  Italic  and  Greco-Italic  cities  con- 
tinued to  be  governed  by  their  own  laws,  which  in  the 
case  at  least  of  Oscan  and  Umbrian  communities  usually 
resembled  that  of  Rome,  and  which  of  course  tended  to 
become  assimilated  to  it  even  before  Roman  citizenship 
was  extended  to  the  Italian  allies.  With  the  annexa- 
tion of  part  of  Sicily  in  a.  d.  230  the  first  provincial 
government  was  set  up,  and  the  legal  and  administrative 
problems  which  Rome  had  to  deal  with  began  to  show 
themselves.  Other  provinces  were  added  in  pretty 
rapid  succession,  the  last  being  Britain  (invaded  under 
Claudius  in  a.  d.  43).  Now  although  in  all  these  pro- 
vinces the^R-omans"  nad  to  maintain  order,  to  collect 
revenue  and  to  dispense  justice,  the  conditions  under 
which  these  things,  and  especially  the  dispensing  of 
justice,  had  to  be  done  differed  much  in  different  pro- 
vinces Some,  such  as  Sicily,  Achaia,  Macedonia  and 
the  provinces  of  Western  Asia  Minor,  as  well  as  Africa 
(i.  c.  such  parts  of  that  province  as  Carthage  had  per- 


76  ROMA  \    AND   ENGLISH   LAW 

meatcd),  were  civilized  countries,  where  law-courts  al- 
ready existed  in  the  cities1.  The  laws  had  doubtless 
almost  everywhere  been  created  by  custom,  for  the  so- 
called  Codes  we  hear  of  in  Greek  cities  were  often 
rather  in  the  nature  of  political  constitutions  and  penal 
enactments  than  summarized  statements  of  the  whole 
private  law;  yet  in  some  cities  the  customs  had  been  so 
summarized  -.  Other  provinces,  such  as  those  of  Thrace, 
Transalpine  Gaul,  Spain,  and  Britain,  were  in  a  lower 
stage  of  social  organization,  and  possessed,  when  they 
were  conquered,  not  so  much  regular  laws  as  tribal 
usages,  suited  to  their  rude  inhabitants.  In  the  former 
set  of  cases  not  much  new  law  was  needed.  In  the 
latter  set  the  native  customs  could  not  meet  the  needs  of 
communities  which  soon  began  to  advance  in  wealth  and 
culture  under  Roman  rule,  so  law  had  to  be  created. 

There  were  also  in  all  these  provinces  two  classes 
of  inhabitants.  One  consisted  of  those  who  enjoyed 
Roman  citizenship,  not  merely  men  of  Italian  birth 
settled  there  but  also  men  to  whom  citizenship  had 
been  granted  (as  for  instance  when  they  retired  from 
military  service),  or  the  natives  of  cities  on  which  (as  to 
Tarsus  in  Cilicia,  St.  Paul's  birthplace)  citizenship  had 
been  conferred  as  a  boon3.  This  was  a  large  class,  and 
went  on  rapidly  increasing.  To  it  pure  Roman  law 
was  applicable,  subject  of  course  to  any  local  customs. 

The  other  class  consisted  of  the  provincial  subjects 
who  were  merely  subjects,  and,  in  the  view  of  the 
Roman  law,  aliens  (peregrini).    They  had  their  own  laws 

1  Cicero  says  of  Sicily,  'Siculi  hoc  iurc  sunt  ut  quod  civis  cum  cive  agat,  domi 
certct  suis  legibus  ;  quod  Siculus  cum  Siculo  non  ciusdem  civitatis,  ut  dc  co  praetor 
iudices  sortiatur'  ;  In  Verrc/n,  ii.  13,  32. 

2  The  laws  of  Gortyn  in  Crete,  recently  published  from  an  Inscription  dis- 
covered there,  apparently  of  about  500  B.  c,  are  a  remarkable  instance.  Though 
not  a  complete  code,  they  cover  large  parts  of  the  field  of  law, 

3  When  I  speak  of  citizenship,  it  is  not  necessarily  or  generally  political  citizen- 
ship that  is  to  be  understood,  but  the  citizenship  which  carried  with  it  private 
civil  rights  (those  rights  which  the  Romans  call  etnnubium  and  commercium),  in- 
cluding Roman  family  and  inheritance  law  and  Roman  contract  and  property 
law.  Not  only  the  civilized  Spaniards  but  the  bulk  of  the  upper  class  in  Greece 
seem  to  have  become  citizens  by  the  time  of  the  Antonincs. 


ROMAN  AND   ENGLISH  LAW  77 

or  tribal  customs,  and  to  them  Roman  law  was  primarily 
inapplicable,  not  only  because  it  was  novel  and  un- 
familiar, so  strange  to  their  habits  that  it  would  have 
been  unjust  as  well  as  practically  inconvenient  to  have 
applied  it  to  them,  but  also  because  the  Romans,  like  the 
other  civilized  communities  of  antiquity,  had  been  so 
much  accustomed  to  consider  private  legal  rights  as 
necessarily  connected  with  membership  of  a  city  com- 
munity that  it  would  have  seemed  unnatural  to  apply  the 
private  law  of  one  city  community  to  the  citizens  of 
another.  It  is  true  that  the  Romans  after  a  time  dis- 
abused their  minds  of  this  notion,  as  indeedthey  had  from 
a  comparatively  early  period  extended  their  own  private 
civil  rights  to  many  of  the  cities  which  had  become  their 
subject  allies.  Still  it  continued  to  influence  them  at 
the  time  (b.  c.  230  to  120)  when  they  were  laying  out 
the  lines  of  their  legal  policy  for  the  provinces. 

Of  that  legal  policy  I  must  speak  quite  briefly,  partly 
because  our  knowledge,  though  it  has  been  enlarged 
of  late  years  by  the  discovery  and  collection  of  a  great 
mass  of  inscriptions,  is  still  imperfect,  partly  because 
I  could  not  set  forth  the  details  without  going  into  a 
number  of  technical  points  which  might  perplex  readers 
unacquainted  with  the  Roman  law.  It  is  only  the  main 
lines  on  which  the  conquerors  proceeded  that  can  be 
here  indicated. 

Every  province  was  administered  by  a  governor  with 
a  staff  of  subordinate  officials,  the  higher  ones  Roman, 
and  (under  the  Republic)  remaining  in  office  only  so 
long  as  did  the  governor.  The  governor  was  the 
head  of  the  judicial  as  well  as  the  military  and  civil  ad- 
ministration, just  as  the  consuls  at  Rome  originally 
possessed  judicial  as  well  as  military  and  civil  powers, 
and  just  as  the  praetor  at  Rome,  though  usually  occupied 
with  judicial  work,  had  also  both  military  and  civil  autho- 
rity. The  governor's  court  was  the  proper  tribunal  for 
those  persons  who  in  the  provinces  enjoyed  Roman 
citizenship,  and  in  it  Roman  law  was  applied  to  such 


78  ROMAN  AND   ENGLISH  LAW 

persons  in  matters  touching  their  family  relations,  their 
rights  of  inheritance,  their  contractual  relations  with  one 
another,  just  as  English  law  is  applied  to  Englishmen 
in  Cyprus  or  Hong  Kong.  Xo  special  law  was  needed 
for  them.  As  regards  the  provincials,  they  lived  under 
their  own  law,  whatever  it  might  be,  subject  to  one  im- 
portant modification.  Every  governor  when  he  entered 
his  province  issued  an  Edict  setting  forth  certain  rules 
which  he  proposed  to  apply  during  his  term  of  office. 
These  rules  were  to  be  valid  only  during  his  term,  for 
his  successor  issued  a  fresh  Edict,  but  in  all  probability 
each  reproduced  nearly  all  of  what  the  preceding  Edict 
had  contained.  Thus  the  same  general  rules  remained 
continuously  in  force,  though  they  might  be  modified  in 
detail,  improvements  which  experience  had  shown  to  be 
necessary  being  from  time  to  time  introduced1.  This 
was  the  method  which  the  praetors  followed  at  Rome, 
so  the  provincial  governors  had  a  precedent  for  it  and 
knew  how  to  work  it.  Now  the  Edict  seems  to  have 
contained,  besides  its  provisions  regarding  the  collection 
of  revenue  and  civil  administration  in  general,  certain 
more  specifically  legal  regulations,  intended  to  indicate 
the  action  which  the  governor's  court  would  take  not 
only  in  disputes  arising  between  Roman  citizens,  but 
also  in  those  between  citizens  and  aliens,  and  probably 
also  to  some  extent  in  those  between  aliens  them- 
selves. Where  the  provisions  of  the  Edict  did  not 
apply,  aliens  would  be  governed  by  their  own  law. 
In  cities  municipally  organized,  and  especially  in  the 
more  civilized  provinces,  the  local  city  courts  would 
doubtless  continue  to  administer,  as  they  had  done 
before  the  Romans  came,  their  local  civil  law ;  and  in 
the  so-called  free  cities,  which  had  come  into  the  Empire 
as  allies,  these  local  courts  had  for  a  long  time  a  wide 
scope  for  their  action.  Criminal  law,  however,  would 
seem  to  have  fallen  within  the  governor's  jurisdiction, 
at  any  rate  in  most  places  and  for  the  graver  offences, 

'  As  to  this  sec  Essay  JCIV,  p.  69^  sqq. 


ROMAN  AND   ENGLISH  LAW  79 

because  criminal  law  is  the  indispensable  guarantee 
for  public  order  and  for  the  repression  of  sedition 
or  conspiracy,  matters  for  which  the  governor  was  of 
course  responsible 1.  Thus  the  governor's  court  was 
not  only  that  which  dispensed  justice  between  Roman 
citizens,  and  which  dealt  with  questions  of  revenue,  but 
was  also  the  tribunal  for  cases  between  citizens  and 
aliens,  and  for  the  graver  criminal  proceedings.  It  was 
apparently  also  a  court  which  entertained  some  kinds 
of  suits  between  aliens,  as  for  instance  between  aliens 
belonging  to  different  cities,  or  in  districts  where  no 
regular  municipal  courts  existed,  and  (probably)  dealt 
with  appeals  from  those  courts  where  they  did  exist. 
Moreover  where  aliens  even  of  the  same  city  chose  to 
resort  to  it  they  could  apparently  do  so.  I  speak  of 
courts  rather  than  of  law,  because  it  must  be  remem- 
bered that  although  we  are  naturally  inclined  to  think 
of  law  as  coming  first,  and  courts  being  afterwards 
created  to  administer  law,  it  is  really  courts  that  come 
first,  and  that  by  their  action  build  up  law  partly  out 
of  customs  observed  by  the  people  and  partly  out  of 
their  own  notions  of  justice.  This,  which  is  generally 
true  of  all  countries,  is  of  course  specially  true  of  coun- 
tries where  law  is  still  imperfectly  developed,  and  of 
places  where  different  classes  of  persons,  not  governed 
by  the  same  legal  rules,  have  to  be  dealt  with. 

The  Romans  brought  some  experience  to  the  task 
of  creating  a  judicial  administration  in  the  provinces, 
where  both  •itizens  and  aliens  had  to  be  considered,  for 
Rome  herself  had  become,  before  she  began  to  acquire 
territories  outside  Italy,  a  place  of  residence  or  resort 
for  alien  traders,  so  that  as  early  as  b.  c.  247  she  created 
a  magistrate  whose  special  function  it  became  to  handle 
suits  between  aliens,  or  in  which  one  party  was  an 
alien.     This  magistrate  built  up,  on  the  basis  of  mer- 

1  In  St.  Paul's  time,  however,  the  Athenian  Areopagus  would  seem  to  have  re- 
tained its  jurisdiction  ;  cf.  Acts  xvii.  19.  The  Romans  treated  Athens  with  special 
consideration. 


80  ROM  IV  .\\n  i:\(;i,isii  LAW 

cantile  usage,  equity,  and  common  sense,  a  body  of 
rules  fit  to  be  applied  between  persons  whose  native 
law  was  not  the  same ;  and  the  method  he  followed 
would  naturally  form  a  precedent  for  the  courts  of  the 
provincial  governors. 

Doubtless  the  chief  aim,  as  well  as  the  recognized 
duty,  of  the  governors  was  to  disturb  provincial  usage 
as  little  as  they  well  could.  The  temptations  to  which 
they  were  exposed,  and  to  which  they  often  succumbed, 
did  not  lie  in  the  direction  of  revolutionizing  local  law 
in  order  to  introduce  either  purely  Roman  doctrines 
or  any  artificial  uniformity1.  They  would  have  made 
trouble  for  themselves  had  they  attempted  this.  And 
why  should  they  attempt  it  ?  The  ambitious  governorsv 
desired  military  fame.  The  bad  ones  wanted  money. 
The  better  men,  such  as  Cicero,  and  in  later  days 
Pliny,  liked  to  be  feted  by  the  provincials  and  have 
statues  erected  to  them  by  grateful  cities.  No  one 
of  these  objects  was  to  be  attained  by  introducing  legal 
reforms  which  theory  might  suggest  to  a  philosophic 
statesman,  but  which  nobody  asked  for.  It  seems  safe 
to  assume  from  what  we  know  of  official  human  nature 
elsewhere,  that  the  Roman  officials  took  the  line  of  least 
\  resistance  compatible  with  the  raising  of  money  and 
\the  maintenance  of  order.  These  things  being  secured, 
they  would  be  content  to  let  other  things  alone. 

Things,  however,  have  a  way  of  moving  even  when 
officials  may  wish  to  let  them  rest.  When  a  new  and 
vigorous  influence  is  brought  into  a  mixture  of  raee> 
receptive  rather  than  resistent  (as  happened  in  Asia 
Minor  under  the  Romans),  or  when  a  higher  cnltnre 
acts  through  government  upon  a  people  less  advanced 
but  not  less  naturally  gifted  (as  happened  in  Gaul  under 
the  Romans),  changes  must  follow  in  law  as  well  as  in 
other  departments  of  human  action.     Here  two  forces 

1  One  of  the  charpes  apainst  Vcrres  was  that  he  disregarded  all  kinds  of  law 
alike.  Undrr  him,  s.iys  Cicero,  (he  Sicilians  '  Deque  suas  lepes  ncque  nostra  I  Hia- 
tus consulta  neque  comrnunia  iura  tcnucrunt' ;  In  Verr.  i.  .(,  i  :. 


ROMAN  AND  ENGLISH  LAW  81 

were  at  work.  One  was  the  increasing  number  of  per- 
sons who  were  Roman  citizens,  and  therefore  lived  by 
the  Roman  law.  The  other  was  the  increasing  tendency 
of  the  government  to  pervade  and  direct  the  whole  public 
life  of  the  province.  When  monarchy  became  established 
as  the  settled  form  of  the  Roman  government,  pro- 
vincial administration  began  to  be  better  organized,  and 
a  regular  body  of  bureaucratic  officials  presently  grew  up. 
The  jurisdiction  of  the  governor's  court  extended  itself, 
and  was  supplemented  in  course  of  time  by  lower  courts 
administering  law  according  to  the  same  rules.  The  law 
applied  to  disputes  arising  between  citizens,  and  non- 
citizens  became  more  copious  and  definite.  The  pro- 
vincial Edicts  expanded  and  became  well  settled  as 
respects  the  larger  part  of  their  contents.  So  by 
degrees  the  law  of  the  provinces  was  imperceptibly 
Romanized  in  its  general  spirit  and  leading  conceptions, 
probably  also  in  such  particular  departments  as  the 
original  local  law  of  the  particular  province  had  not 
fully  covered.  But  the  process  did  not  proceed  at  the 
same  rate  in  all  the  provinces,  nor  did  it  result  in  a  uni- 
form legal  product,  for  a  good  deal  of  local  customary 
law  remained,  and  this  customary  law  of  course  differed 
in  different  provinces.  In  the  Hellenic  and  Hellenized 
countries  the  pre-existing  law  was  naturally  fuller  and 
stronger  than  in  the  West ;  and  it  held  its  ground  more 
effectively  than  the  ruder  usages  of  Gauls  or  Spaniards, 
obtaining  moreover  a  greater  respect  from  the  Romans, 
who  felt  their  intellectual  debt  to  the  Greeks. 

It  may  be  asked  what  direct  legislation  there  was 
during  this  period  for  the  provinces.  Did  the  Roman 
Assembly  either  pass  statutes  for  them,  as  Parliament 
has  sometimes  done  for  India,  or  did  the  Assembly 
establish  in  each  province  some  legislative  authority  ? 
So  far  as  private  law  went  Rome  did  neither  during 
the  republican  period*^     The  necessity  was   not   felt, 


1  The  Lex  Sempronia  mentioned  t>y  Livy,  xxxv.  7,  seems  to  be  an  exception, 
due  to  very  special  circumstances. 

6 


83  ROM  IV     \\l>   ENGLISH    LAW 

because  any  alterations  made  in  Roman  law  proper 
altered  it  for  Roman  citizens  who  dwelt  in  the  pro- 
vinces no  less  than  for  those  in  Italy,  while  as  to  pro- 
vincial aliens,  the  Edict  of  the  governor  and  the  rules 
which  the  practice  of  his  courts  established  were  suffi- 
cient to  introduce  any  needed  changes.  But  the  Senate 
issued  decrees  intended  to  operate  in  the  provinces, 
and  when  the  EmperoYs~began  to  send  instructions  to 
their  provincial  governors  or  to  issue  declarations  of 
their  will  in  any  other  form,  these  had  the  force  of  law, 
and  constituted  a  body  of  legislation,  part  of  which  was 
general,  while  part  was  special  to  the  province  for  which 
it  was  issued. 

Meantime — and  I  am  now  speaking  particularly  of 
the  three  decisively  formative  centuries  from  B.C.  150 
to  a.  d.  ^c^-another  process  had  been  going  on  even 
more  important.  The  Roman  law  itself  had  been 
changing  its  character,  had  been  developing  from  a 
rigid  and  highly  technical  system\  archaic  in  its  forms 
and  harsh  in  its  rules,  preferring  the  letter  to  the  spirit, 
and  insisting  on  the  strict  observance  of  set  phrases,  into 
a  liberal  and  elastic  system,  pervaded  by  the  principles 
of  equity  and  serving  the  practical  convenience  of  a 
cultivated  and  commercial  community..  The  nature  of 
this  process  will  be  found  described  in  other  parts  of 
this  volume1.  Its  result  was  to  permeate  the  original 
law  of  Rome  applicable  to  citizens  only  (ins  ciz'ilc)  Xyith 
the  law  which  had  been  constructed  for  the  sake  of  deal- 
ing with  aliens  (ins  gentium),  so  that  the  product  was  a 
body  of  rules  fit  to  be  used  by  any  civilized  people,  as 
being  grounded  in  reason  and  utility,  while  at  the  same 
time  both  copious  in  quantity  and  refined  in  quality. 

This  result  had  been  reached  about  a.  d.  150,  by  which 
time  the  laws  of  the  several  provinces  had  also  been 
largely  Romanized.  Thus  each  body  of  law — if  we 
may  venture  for  this  purpose  to  speak  of  provincial  law 
as  a  whole — had   been   drawing  nearer   to   the   other. 

'  See  Essay  XI,  and  Essay  XIV,  p.  706. 


ROMAN  AND   ENGLISH  LAW  83 

The  old  law  of  the  city  of  Rome  had  been  expanded 
and  improved  till  it  was  fit  to  be  applied  to  the  pro- 
vincesv/The  various  laws  of  the  various  provinces  had 
been  constantly  absorbing  the  law  of  the  city  in  the 
enlarged  and  improved  form  latterly  given  to  it.  Thus 
when  at  last  the  time  for  a  complete  fusion  arrived 
the  differences  between  the  two  had  been  so  much  re- 
duced that  the  fusion  took  place  easily  and  naturally, 
with  comparatively  little  disturbance  of  the  state  of 
things  already  in  existence.  One  sometimes  finds  on 
the  southern  side  of  the  Alps  two  streams  running  in 
neighbouring  valleys.  One  which  has  issued  from  a 
glacier  slowly  deposits  as  it  flows  over  a  rocky  bed 
the  white  mud  which  it  brought  from  its  icy  cradle. 
The  other  which  rose  from  clear  springs  gradually 
gathers  colouring  matter  as  in  its  lower  course  it  cuts 
through  softer  strata  or  through  alluvium.  When  at  last 
they  meet,  the  glacier  torrent  has  become  so  nearly 
clear  that  the  tint  of  its  waters  is  scarcely  distinguishable 
from  that  of  the  originally  bright  but  now  slightly  turbid 
affluent.  Thus  Roman  and  provincial  law,  starting  from 
different  points  but  pursuing  a  course  in  which  their 
diversities  were  constantly  reduced,  would  seem  to  have 
become  so  similar  by  the  end  of  the  second  century 
a.  d.  that  there  were  few  marked  divergences,  so  far  as 
private  civil  rights  and  remedies  were  concerned,  be- 
tween the  position  of  citizens  and  that  of  aliens. 

Here,  however,  let  a  difference  be  noted.  The  power 
of  assimilation  was  more  complete  in  some  branches 
of  law  than  it  was  in  others ;  and  it  was  least  com- 
plete in  matters  where  old  standing  features  of  national 
character  and  feeling  were  present.  In  the  Law  of 
Property  and  Contract  it  had  advanced  so  far  as  to 
have  become,  with  some  few  exceptions1,  substantially 
identical.  The  same  may  be  said  of  Penal  Law  and 
the   system   of  legal   procedure.      But   in   the   Law  of 

1  Such  as  the  technical  peculiarities  of  the  Roman  stipulation  and  the  Greek 
syngraphe. 


84  ROMAN  AND  ENGLISH  LAW 

Family  Relations  and  in  that  of  Inheritance,  a  matter 
closely  connected  with  family  relations,  the  dissimi- 
larities were  still  significant;  and  we  shall  find  this 
phenomenon  reappearing  in  the  history  of  English  and 
Native  Law  in  India. 

Two  influences  which  I  have  not  yet  dwelt  upon  had 
been,  during  the  second  century,  furthering  the  assimi- 
lation. One  was  the  direct  legislation  of  the  Emperor 
which,  scanty  during  the  first  age  of  the  monarchy,  had 
now  become  more  copious,  and  most  of  which  was 
intended  to  operate  upon  citizens  and  aliens  alike.  The 
other  was  the  action  of  the  Emperor  as  supreme  judicial 
authority,  sometimes  in  matters  brought  directly  before 
him  for  decision,  more  frequently  as. judge  of  appeals 
from  inferior  tribunals.-  He  had  a  council  called. the 
(.  Onsistory  which  acted  on  his  behalf,  because,  especially 
in  the  troublous  times  which  began  after  the*  reign  of 
Marcus  Aurelius  and  presaged  the  ultimate  dissolution 
of  the  Empire,  the  sovereign  was  seldom  able  to  pre'-* 
side  in  person.  The  judgements  of  the  Consistory,  being 
delivered  in  the  Emperor's  name  as  his,  and  having 
equal  authority  with  statutes  issued  by  him,  must  have 
done  much  to  make  law  uniform  in  all  the  provinces  and 
among  all  classes  of  subjects  '. 

III.  The  Establishment  of  One  Law  for  the 
Empire. 

Finally,  in  the  beginning  of  the  third  century  a.  d.,  the 
decisive  step  was  taken.  The  distinction  between  citi* 
zens  and  aliens  vanished  by  the  grant  of  full  citizen- 
ship to  all  subjects  of  the  Enfpirc,  a. grant  however 
which  may  have  been,  in  the  first  instance,  applied 
only  to  organized  communities,  and  not  also  to  the 
backward  sections  of  the  rural  population,  in  Corsica, 

1  These  decreta  of  the  Emperor  were  reckoned  among  his  Const itutiones  (as  to 
Which  Me  Essay  XIV,  p.  720  sqq.).  There  does  not  seem  to  have  been  any  public 
record  kept  and  published  of  them,  but  many  of  them  would  doubtless  become 
diffused  through  tin- law  schools  and  otherwise.  The  lirst  regular  collections  of 
imperial  constitutions  known  to  us  belong  to  a  later  time. 


ROMAN  AXD   LSXGLISH  LAW  85 

for  instance,  or  in  some  of  the  Alpine  valleys.  Our 
information  as  to  the  era  to  which  this  famous  Edict 
of  Caracalla's  belongs  is  lamentably  scanty.  A Gaius,  who 
is  the  best  authority  for  the  middle  period  of  the  law, 
lived  fifty  or  sixty  years  earlier.  The  compilers  of 
Justinian's  Digest,  which  is  the  chief  source  of  our 
knowledge  for  the  law  as  a  whole,  lived  three  hundred 
years  later,  when  the  old  distinctions  between  the  legal 
rights  of  citizens  and  those  of  aliens  had  become  mere 
matters  of  antiquarian  curiosity.  These  compilers  there- 
fore modified  the  passages  of  the  older  jurists  which 
they  inserted  in  the  Digest  so  as  to  make  them  suit  their 
own  more  recent  time/  As  practical  men  they  were  right, 
but  they  have  lessened  the  historical  value  of  these 
fragments  of  the  okler  jurists,  just  as  the  modern  restorer 
of  a  church  spoils  it  for  the  purposes  of  architectural 
history,  when  he  alters  it  to  suit  his  own  ideas  of 
beauty  or  convenience."  Still  it  may  fairly  be  assumed 
that  when  Caracalla's  grant  of  citizenship  was  made  the 
bulk  of  the  people*  or  at  least  of  the  town  dwellers,  had 
already  obtained  either  a'complete  or  an  incomplete 
.citizenship  in  the  more  advanced  provinces,,  and  that 
»  those  who  had  hot  were  at 'any  rate  enjoying  under  the 
•  provincial  Edicts  most  ofjthe  civil  rights  that  had  previ- 
.  \>usly  been  confined  to  citizens,  such  for  instance  as  the 
use  of  the  so-called  Praetorian  Will  with  its  seven  seal>. 
^  How  far  the  pre-existing  local  law  of  different  pro- 
i  vjnees  or  ( districts  was  superseded  at  one  stroke  by 
this*  extension  of  citizenship,  or  in  other  words,  what 
direct  and  immediate  change  was  effected  in  the  modes 
of  jurisdiction  and  in  the  personal  relations  of  private 
persons,  is  a  question  which  we  have  not  the  means  of 
answering.-  'Apparently  many  difficulties  arose  which 
further  legislation,  not  always  consistent,  was  required 
to  deal  with*..  One  would  naturally  suppose  that  where 

1  See  upon  this  subject  the  learned  and  acute  treatise  (by  which  I  have  been 
much  aided)  of  Dr.  L.  Mitteis,  Reichsrecht  und  Volksrecht  in  den  Sstlichtn  Pro- 
vinzen  des  Romischen  Kaiserrcichs,  Chap.  VI. 


86  h'OMAN  AND   ENGLISH  LAW 

Roman  rules  differed  materially  from  those  which  a 
provincial  community  had  followed,  the  latter  could  not 
have  been  suddenly  substituted  for  the  former. 

A  point,  for  instance,  about  which  we  should  like 
to  be  better  informed  is  whether  the  Roman  rules 
which  gave  to  the  father  his  wide  power  over  his  chil- 
dren and  their  children  were  forthwith  extended  to  pro- 
vincial families.  The  Romans  themselves  looked  upon 
this  paternal  power  as  an  institution  peculiar  to  them- 
selves.:\To  us  moderns,  and  especially  to  Englishmen 
and  Americans,  it  seems  so  oppressive  that  we  cannot 
but  suppose  it  was  different  in  practice  from  what  it 
looks  on  paper.  And  although  it  had  lost  some  of  its  old 
severity  by  the  time  of  the  Antonines,  one  would  think 
that  communities  which  had  not  grown  up  under  it 
could  hardly  receive  it  with  pleasure. 

From  the  time  of  Caracalla  (a.  d.  21 1-217)  down  till 
the  death  of  Theodosius  the  Great  (a.  ix  395)  the  Empire 
had  but  one  lawAThere  was  doubtless  a  certain  amount 
of  special  legislation  for  particular  provinces,  and  a 
good  deal  of  customary  law  peculiar  to  certain  provinces 
or  parts  of  themxAlthough  before  the  time  of  Justinian 
it  would  seem  that  every  Roman  subject,  except  the 
half-barbarous  peoples  on  the  frontiers,  such  as  the 
Soanes  and  Abkhasians  of  the  Caucasus  or  the  Ethiopic 
tribes  of  Nubia,  and  except  a  very  small  class  of  freed- 
men,  was  in  the  enjoyment  of  Roman  citizenship,  with 
private  rights  substantially  the  same,  yet  it  is  clear 
that  in  the  East  some  Roman  principles  and  maxims 
were  never  fully  comprehended  by  the  mass  of  the  in- 
habitants and  their  legal  advisers  of  the  humbler  sort, 
while  other  principles  did  not  succeed  in  displacing 
altogether  the  rules  to  which  the  people  were  attached. 
We  have  evidence  in  recently  recovered  fragments  of 
an  apparently  widely  used  law-book,  Syriac  and  Arme- 
nian copies  (if  which  remain,  that  this  was  the  case  in  the 
Eastern  provinces]  and  no  doubt  it  was  so  in  others  also. 
In   Egypt,   for  instance,   it    may   be   gathered   from   the 


ROMAN  AND   ENGLISH  LAW  87 

fragments  of  papyri  which  are  now  being  published, 
that  the  old  native  customs,  overlaid  or  re-moulded  to 
some  extent  by  Greek  law,  held. their  ground  even  down 
to  the  sixth  or  seventh  century^  Still,  after  making 
all  allowance  for  these  provincial  variations,  philosophic 
jurisprudence  and  a  levelling  despotism  had  done  their 
work,  and  given  to  the  civilized  world,  for  the  first  and 
last  time  in  its  history,  one  harmonious  body  of  legal 
rules. 

The  causes  which  enabled  the  Romans  to  achieve 
this  result  were,  broadly  speaking,  the  five  following: — 

(i)  There  was  no  pre-existing  body  of  law  deeply 
rooted  and  strong  enough  to  offer  resistance  to  the 
spread  of  Roman  law.  Where  any  highly  developed  sys- 
tem of  written  rules  or  customs  existed,  it  existed  only 
in  cities,  such  as  those  of  the  Greek  or  Graecized  pro- 
vinces on  both  sides  of  the  Aegean.  The  large  countries, 
Pontus,  for  instance,  or  Macedonia  or  Gaul,  were  in  a 
legal  sense  unorganized  or  backward.  Thus  the  Romans 
had,  if  not  a  blank  sheet  to  write  on,  yet  no  great  difficulty 
in  overspreading  or  dealing  freely  with  what  they  found. 

(2)  There  were  no  forms  of  faith  which  had  so  inter- 
laced religious  feelings  and  traditions  with  the  legal 
notions  and  customs  of  the  people  as  to  give  those 
notions  and  customs  a  tenacious  grip  on  men's  affection. 
Except  among  the  Jews,  and  to  some  extent  among  the 
Egyptians,  Rome  had  no  religious  force  to  overcome 
such  as  Islam  and  Hinduism  present  in  India. 

(3)  The  grant  of  Roman  citizenship  to  a  community 
or  an  individual  was  a  privilege  highly  valued,  because 
it  meant  a  rise  in  social  status  and  protection  against 

1  This  is  carefully  worked  out  both  as  to  Syria  and  to  Egypt  by  Dr.  Mitteis,  e/.  cit. 
He  thinks  (pp.  30-33)  that  the  law  of  the  Syrian  book,  where  it  departs  from  pure 
Roman  law  as  we  find  it  in  the  Corpus  Juris,  is  mainly  of  Greek  origin,  though 
with  traces  of  Eastern  custom.  He  also  suggests  that  the  opposition,  undoubtedly 
strong,  of  the  Eastern  Monophysites  to  the  Orthodox  Emperors  at  Constantinople 
may  have  contributed  to  make  the  Easterns  cling  the  closer  to  their  own  cus- 
tomary law.  The  Syrian  book  belongs  to  the  fifth  century  a. n.,  and  is  therefore 
earlier  than  Justinian  (Bruns  uiul  Sachau,  Syrisch-romischcs  Rcchtsbuch  aits  lion 
fun/ten  Jah  rh  undcrt). 


88  BOMAh   A\J>  ENGLISH   t  ni 

arbitrary  treatment  by  officials.  Hence  even  those  who 
might  have  liked  their  own  law  better  were  glad  to  part 
with  it  for  the  sake  of  the  immunities  of  a  Roman  citizen. 

(4)  The  Roman  governor  and  the  Roman  officials  in 
\    general   had   an   administrative    discretion    wider   than 

officials  enjoy  under  most  modern  governments,  and 
certainly  wider  than  either  a  British  or  an  United  States 
legislature  would  delegate  to  any  person.  Hence  Ro- 
man governors  could  by  their  Edicts  and  their  judi- 
cial action  mould  the  law  and  give  it  a  shape  suitable 
to  the  needs  of  their  province  with  a  freedom  of  hand- 
ling which  facilitated  the  passage  from  local  law  or  cus- 
tom to  the  jurisprudence  of  the  Empire  generally. 

(5)  Roman  law  itself,  i.e.  the  law  of  the  city,  went  on 
expanding  and  changing,  ridding  itself  of  its  purely 
national  and  technicaPpe^uHarities,  till  it  became  fit  to 
be  the  law  of  the  whole  v\[orld.  This  process  kept  step 
with,  and  was  the  natural  expression  of,  the  political 
and  social  assimilation  of  Rome  to  the  provinces  and 
of  the  provinces  to  Rome. 

At  the  death  of  TJieodosius  the  Great  the  Roman  Em- 
pire was  finally  divided  into  an  Eastern  and  a  Western 
Jialf;  so  that  thenceforward  there  were  two  legislative 
authorities.  For  the  sake  of  keeping  the  law  as  uniform 
as  possible,  arrangements  were  made  for  the  transmis- 
sion by  each  Emperor  to  the  other  of  such  ordinances 
as  he  might  issue,  in  order  that  these  might  be,  if 
approved,  issued  for  the  other  half  of  the  Empire. 
These  arrangements,  however,  were  not  fully  carried 
out:  and  before  long  the  Western  Empire  drifted  into 
so  rough  a  sea  that  legislation  practically  stopped.  The 
great  Cojjfiz  of  Tfreprinsiiis  the  Second,  (a  collection  of 
imperial  enactments  published  in  a.d.  438)  was  however 
promulgated  in  the  Western  as  well  as  in  the  Eastern 
part  of  the  Empire,  whereas  the  later  Codex  and  Digest 
of  Justinian,  published  nearly  a  century  later,  was  en- 
acted only  for  the  East,  though  presently  extended- (by 
re-conquest)  to  Italy,  Sicily,  and  Africa.     Parts  of  the 


ROMAN  AND  ENGLISH   LAW  89 

Theodosian  Codex  were  embodied  in  the  manuals  of 
law  made  for  the  use  of  their  Roman  subjects  by  some 
of  the  barbarian  kings.  It  continued  to  be  recognized 
in  the  Western  provinces  after  the  extinction  of  the 
imperial  line  in  the  West  in  a.  d.  476:  and  was  indeed, 
along  with  the  manuals  aforesaid,  the  principal  source 
whence  during  a  long  period  the  Roman  population 
drew  their  law  in  the  provinces  out  of  which  the  king- 
doms of  the  Franks,  Burgundians,  and  Visigoths  were 
formed. 

Then  came  the  torpor  of  the  Dark  Ages. 


IV.   The  Extension  of  Roman  Law  after  the  Fall 
of  the  Western  Empire. 

Upon  the  later  history  of  the  Roman  law  and  its 
diffusion  through  the  modern  world  I  can  but  briefly 
touch,  for  I  should  be  led  far  away  from  the  special  topic 
here  considered.  The  process  of  extension  went  on  in 
some  slight  measure  by  conquest,  but  mainly  by  peaceful 
means,  the  less  advanced  peoples,  who  had  no  regular 
legal  system  of  their  own,  being  gradually  influenced 
by  and  learning  from  their  more  civilized  neighbours  to 
whom  the  Roman  system  had  descended.  The  light  of 
legal  knowledge  radiated  forth  from  two  centres,  from 
Constantinople  over  the  Balkanic  and  Euxine  countries 
between  the  tenth  and  the  fifteenth  centuries,  from 
Italy  over  the  lands  that  lay  north  and  west  of  her 
from  the  twelfth  to  the  sixteenth  century.  Thereafter 
it  is  Germany,  Holland,  and  France  that  have  chiefly 
propagated  the  imperial  law,  Germany  by  her  univer- 
sities and  writers,  France  and  Holland  both  through 
their  jurists  and  as  colonizing  powers. 

In  the  history  of  the  mediaeval  and  modern  part  of 
the  process  of  extension  five  points  or  stages  of  especial 
import  may  be  noted. 

The  first  is  the  revival  of  legal  study  which  began  in 


90  ROMAN  AND  ENGLISH   LAW 

Italy  towards  the  end  of  the  eleventh  century  a.  d.,  and 
the  principal  agent  in  which  was  the  school  of  Bologna, 
famous  for  many  generations  thereafter.  From  that 
date  onward  the  books  of  Justinian,  which  had  before 
that  time  been  superseded  in  the  Eastern  Empire,  were 
lectured  and  commented  on  in  the  universities  of  Italy, 
France,  Spain,  England,  Germany,  and  have  continued 
to  be  so  till  onr  own  day.  They  formed,  except  in 
England  where  from  the  time  of  Henry  the  Third 
onwards  they  had  a  powerful  and  at  last  a  victorious 
rival  in  the  Common  Law,  the  basis  of  all  legal  training 
and  knowledge. 

The  second  is  the  creation  of  that  vast  mass  of  rules 
for  the  guidance  of  ecclesiastical  matters  and  courts — 
courts  whose  jurisdiction  was  in  the  Middle  Ages  far 
wider  than  it  is  now — which  we  call  the  Canon  Law. 
These  rules,  drawn  from  the  canons  of  Councils  and 
decrees  of  Popes,  began  to  be  systematized  during 
the  twelfth  century,  and  were  first  consolidated  into 
an  ordered  body  by  Pope  Gregory  the  Ninth  in  the 
middle  of  the  thirteenth  ] .  They  were  so  largely  based 
on  the  Roman  law  that  we  may  describe  them  as  being 
substantially  a  development  of  it,  partly  on  a  new  side, 
partly  in  a  new  spirit,  and  though  they  competed  with 
the  civil  law  of  the  temporal  courts,  they  also  extended 
the  intellectual  influence  of  that  law. 

The  third  is  the  acceptance  of  the  Roman  law  as 
being  of  binding  authority  in  countries  which  had  not 
previously  owned  it,  and  particularly  in  Germany  and 
Scotland.  It  was  received  in  Germany  because  the 
German  king  (after  the  time  of  Otto  the  Great)  was 
deemed  to  be  also  Roman  Emperor,  the  legitimate  suc- 
cessor of  the  far-off  assemblies  and  magistrates  and 
Emperors  of  old  Rome ;  and  its  diffusion  was  aided 
by  the  fact  that  German  lawyers  had  mostly  received 
their  legal  training  at  Italian  universities.  It  came  in 
gradually  as  subsidiary  to  Germanic  customs,  but  the 

1  Other  parts  were  added  later. 


ROMAN  AND  ENGLISH  LAW  91 

judges,  trained  in  Italy  in  the  Roman  system,  required 
the  customs  to  be  proved,  and  so  by  degrees  Roman 
doctrines  supplanted  them,  though  less  in  the  Saxon 
districts,  where  a  native  law-book,  the  Sackscnspiegcl, 
had  already  established  its  influence.  The  acceptance 
nowhere  went  so  far  as  to  supersede  the  whole  custo- 
mary law  of  Germany,  whose  land-rights,  for  instance, 
retained  their  feudal  character.  The  formal  declaration 
of  the  general  validity  of  the  Corpus  Iuris  in  Germany 
is  usually  assigned  to  the  foundation  by  the  Emperor 
Maximilian  I,  in  1495,  of  the  Imperial  Court  of  Justice 
(Reichskammergericht).  As  Holland  was  then  still  a 
part  of  the  Germanic  Empire,  as  well  as  of  the  Bur- 
gundian  inheritance,  it  was  the  law  of  Holland  also,  and 
so  has  become  the  law  of  Java,  of  Celebes,  and  of  South 
Africa.  In  Scotland  it  was  adopted  at  the  foundation  of 
the  Court  of  Session,  on  the  model  of  the  Parlement  of 
Paris,  by  King  James  the  Fifth.  Political  antagonism  to 
England  and  political  attraction  to  France,  together  with 
the  influence  of  the  Canonists,  naturally  determined  the 
King  and  the  Court  to  follow  the  system  which  prevailed 
on  the  European  continent. 

The  fourth  stage  is  that  of  codification.  In  many 
parts  of  Gaul,  though  less  in  Provence  and  Languedoc, 
the  Roman  law  had  gone  back  into  that  shape  of  a  body 
of  customs  from  which  it  had  emerged  a  thousand  years 
before  ;  and  in  Northern  and  Middle  Gaul  some  customs, 
especially  in  matters  relating  to  land,  were  not  Roman. 
At  last,  under  Lewis  the  Fourteenth,  a  codifying  process 
set  in.  Comprehensive  Ordinances,  each  covering  a 
branch  of  law,  began  to  be  issued  from  1667  down  to 
1747.  These  operated  throughout  France,  and,  being 
founded  on  Roman  principles,  further  advanced  the 
work,  already  prosecuted  by  the  jurists,  of  Romanizing 
the  customary  law  of  Northern  France.  That  of  South- 
ern France  (the  pays  du  droit  ccrit)  had  been  more 
specifically  Roman,  for  the  South  had  been  less  affected 
by  Frankish  conquest  and  settlement.    The  five  Codes 


92  ROMAN  AM)  ENGLISH  LAW 

promulgated  by  Napoleon  followed  in  1803  to  1810 J. 
Others  reproducing  them  with  more  or  less  divergence 
have  been  enacted  in  other  Romance  countries. 

In  Prussia,  Frederick  the  Second  directed  the  pre- 
paration of  a  Code  which  became  law  after  his  death, 
in  1794.  From  1848  onwards  parts  of  the  law  of  Ger- 
many (which  differed  in  different  parts  of  the  country) 
began  to  be  codified,  being  at  first  enacted  by  the  several 
States,  each  for  itself,  latterly  by  the  legislature  of  the 
new  Empire.  Finally,  after  twenty-two  years  of  labour, 
a  new  Code  for  the  whole  German  Empire  was  settled, 
was  passed  by  the  Chambers,  and  came  into  force  on  the 
first  of  January,  1900.  It  does  not,  however,  altogether 
supersede  pre-existing  local  law.  This  Code,  far  from 
being  pure  Roman  law,  embodies  many  rules  due  to 
mediaeval  custom  (especially  custom  relating  to  land- 
rights)  modernized  to  suit  modern  conditions,  and  also 
a  great  deal  of  post-mediaeval  legislation2.  Some  Ger- 
man jurists  complain  that  it  is  too  Teutonic;  others  that 
it  is  not  Teutonic  enough.  One  may  perhaps  conclude 
from  these  opposite  criticisms  that  the  codifiers  have 
made  a  judiciously  impartial  use  of  both  Germanic  and 
Roman  materials. 

Speaking  broadly,  it  may  be  said  that  the  groundwork 
of  both  the  French  and  the  German  Codes — that  is  to 
say  their  main  lines  and  their  fundamental  legal  con- 
ceptions— is  Roman.  Just  as  the  character  and  genius 
of  a  language  are  determined  by  its  grammar,  irre- 
spective of  the  number  of  foreign  words  it  may  have 
picked  up,  so  Roman  law  remains  Roman  despite  the 
accretion  of  the  new  elements  which  the  needs  of  modern 
civilization  have  required  it  to  accept. 

The  fifth  stage  is  the  transplantation  of  Roman  law  in 

1  Among  the  States  in  which  the  French  Code  h.is  been  taken  as  a  model  are 
Belgium,  Italy,  Spain,  Portugal,  Mexico,  and  Chili.  See  an  article  by  Mr.  B. 
Schuster  in  the  Law  Quarterly  Review  for  January,  1896. 

3  An  interesting  sketch  of  the  'reception'  of  Roman  law  in  Germany  (by  Dr. 
Erwin  Griiber)  may  be  found  in  the  Introduction  to  Mr.  Ledlie's  translation  of 
Sohm's  Institutionen  (1st  edition). 


ROMAN  AND   ENGLISH  LAW  93 

its  modern  forms  to  new  countries.  The  Spaniards  and 
Portuguese,  the  French,  the  Dutch,  and  the  Germans 
have  carried  their  respective  systems  of  law  with  them 
into  the  territories  they  have  conquered  and  the  colonies 
they  have  founded ;  and  the  law  has  often  remained 
unchanged  even  when  the  territory  or  the  colony  has 
passed  to  new  rulers.  For  law  is  a  tenacious  plant, 
even  harder  to  extirpate  than  is  language;  and  new 
rulers  have  generally  had  the  sense  to  perceive  that  they 
had  less  to  gain  by  substituting  their  own  law  for  that 
which  they  found  than  they  had  to  lose  by  irritating 
their  new  subjects.  Thus,  Roman-French  law  survives 
in  Quebec  (except  in  commercial  matters)  and  in  Loui- 
siana, Roman-Dutch  law  in  Guiana  and  South  Africa. 

The  cases  of  Poland,  Russia  and  the  Scandinavian 
kingdoms  are  due  to  a  process  different  from  any  of 
those  hitherto  described.  The  law  of  Russia  was  ori- 
ginally Slavonic  custom,  influenced  to  some  extent  by 
the  law  of  the  Eastern  Roman  Empire,  whence  Rus- 
sia took  her  Christianity  and  her  earliest  literary  im- 
pulse. In  its  present  shape,  while  retaining  in  many 
points  a  genuinely  Slavonic  character,  and  of  course  far 
less  distinctly  Roman  than  is  the  law  of  France,  it  has 
drawn  so  much,  especially  as  regards  the  principles  of 
property  rights  and  contracts,  from  the  Code  Napoleon 
and  to  a  less  degree  from  Germany,  that  it  may  be 
described  as  being  Roman  '  at  the  second  remove,'^ 
and  reckoned  as  an  outlying  and  half-assimilated  pro- 
vince, so  to  speak,  of  the  legal  realm  of  Rome.  Poland, 
lying  nearer  Germany,  and  being,  as  a  Catholic  country, 
influenced  by  the  Canon  Law,  as  well  as  by  German 
teaching  and  German  books,  adopted  rather  more  of 
Roman  doctrine  than  Russia  did  1.  Her  students  learnt 
Roman  law  first  at  Italian,  afterwards  at  German  Univer- 

1  In  Lithuania  the  rule  was  that  where  no  express  provision  could  be  found 
governing  a  case,  recourse  should  be  had  to  '  the  Christian  laws.'  Speaking  gene- 
rally, one  may  say  that  it  was  by  and  with  Christianity  that  Roman  law  made 
its  way  in  the  countries  to  the  east  of  Germany  and  to  the  north  of  the  Eastern 
Empire. 


94  ROMAN   AND   EXGLISH  LAW 

sities,  and  when  they  became  judges,  naturally  applied  its 
principles.  The  Scandinavian  countries  set  out  with  a 
law  purely  Teutonic,  and  it  is  chiefly  through  the  German 
Universities  and  the  influence  of  German  juridical  litera- 
ture that  Roman  principles  have  found  their  way  in  and 
coloured  the  old  customs.  Servia,  Bulgaria  and  Ru- 
mania, on  the  other  hand,  were  influenced  during  the 
Middle  Ages  by  the  law  of  the  Eastern  Empire,  whence 
they  drew  their  religion  and  their  culture.  Thus  their 
modern  law,  whose  character  is  due  partly  to  these  By- 
zantine influences — of  course  largely  affected  by  Slavo- 
nic custom — and  partly  to  what  they  have  learnt  from 
France  and  Austria,  may  also  be  referred  to  the  Roman 
type. 

V.  The  Diffusion  of  English  Law. 

England,  like  Rome,  has  spread  her  law  over  a  large 
part  of  the  globe.  But  the  process  has  been  in  her 
case  not  only  far  shorter  but  far  simpler.  The  work 
has  been  (except  as  respects  Ireland)  effected  within 
the  last  three  centuries ;  and  it  has  been  effected  (except 
as  regards  Ireland  and  India)  not  by  conquest  but  by 
peaceful  settlement.  This  is  one  of  the  two  points  in 
which  England  stands  contrasted  with  Rome.  The  other 
is  that  her  own  law  has  not  been  affected  by  the  process. 
It  has  changed  within  the  seven  centuries  that  lie  be- 
tween King  Henry  the  Second  and  the  present  day,  al- 
most if  not  quite  as  much  as  the  law  of  Rome  changed  in 
the  seven  centuries  between  the  enactment  of  the  Twelve 
Tables  and  the  reign  of  Caracalla.  But  these  changes 
have  not  been  due,  as  those  I  have  described  in  the 
Roman  Empire  were  largely  due,  to  the  extension  of  the 
law  of  England  to  new  subjects.  They  would  apparently 
have  come  to  pass  in  the  same  way  and  to  the  same 
extent  had  the  English  race  remained  confined  to  its 
own  island. 

England  has  extended  her  law  over  two  classes  of 
territories. 


ROMAN  AND   ENGLISH  LAW  95 

The  first  includes  those  which  have  been  peacefully 
settled  by  Englishmen — North  America  (except  Lower 
Canada),  Australia,  New  Zealand,  Fiji,  the  Falkland 
Isles.  All  of  these,  except  the  United  States,  have  re- 
mained politically  connected  with  the  British  Crown. 

The  second  includes  conquered  territories.  In  some 
of  these,  such  as  Wales,  Ireland,  Gibraltar,  the  Canadian 
provinces  of  Ontario  and  Nova  Scotia,  and  several  of 
the  West  India  Islands,  English  law  has  been  established 
as  the  only  system,  applicable  to  all  subjects  1.  In  others, 
such  as  Malta,  Cyprus,  Singapore,  and  India,  English  law 
is  applied  to  Englishmen  and  native  law  to  natives,  the 
two  systems  being  worked  concurrently.  Among  these 
cases,  that  which  presents  problems  of  most  interest 
and  difficulty  is  India.  But  before  we  consider  India,  a 
few  words  may  be  given  to  the  territories  of  the  former 
class.  They  are  now  all  of  them,  except  the  West 
Indies,  Fiji  and  the  Falkland  Isles,  self-governing,  and 
therefore  capable  of  altering  their  own  law.  This  they  do 
pretty  freely.  The  United  States  have  now  forty-nine 
legislatures  at  work,  viz.  Congress,  forty-five  States, 
and  three  Organized  Territories.  They  have  turned  out 
an  immense  mass  of  law  since  their  separation  from  Eng- 
land. But  immense  as  it  is,  and  bold  as  are  some  of  the 
experiments  which  may  be  found  in  it,  the  law  of  the 
United  States  remains  (except  of  course  in  Louisiana) 
substantially  English  law.  An  English  barrister  would 
find  himself  quite  at  home  in  any  Federal  or  State  Court, 
and  would  have  nothing  new  to  master,  except  a  few 
technicalities  of  procedure  and  the  provisions  of  anv 
statutes  which  might  affect  the  points  he  had  to  argue. 
And  the  patriarch  of  American  teachers  of  law  (Profes- 
sor C.  C.  Langdell  of  the  Law  School  in  Harvard  Univer- 

1  It  has  undergone  little  or  no  change  in  the  process.  The  Celtic  customs  dis- 
appeared in  Wales ;  the  Brehon  law,  though  it  was  contained  in  many  written 
texts  and  was  followed  over  the  larger  part  of  Ireland  till  the  days  of  the  Tudors, 
has  left  practically  no  trace  in  the  existing  law  of  Ireland,  which  is,  except  as 
respects  land,  some  penal  matters,  and  marriage,  virtually  identical  with  the  law 
of  England. 


96  ROMAN  AND  ENGLISH  LA}Y 

sity),  consistently  declining  to  encumber  his  expositions 
with  references  to  Federal  or  State  Statutes,  continues 
to  discourse  on  the  Common  Law  of  America,  which 
differs  little  from  the  Common  Law  of  England.  The 
old  Common  Law  which  the  settlers  carried  with  them 
in  the  seventeenth  century  has  of  course  been  developed 
or  altered  by  the  decisions  of  American  Courts.  These, 
however,  have  not  affected  its  thoroughly  English  cha- 
racter. Indeed,  the  differences  between  the  doctrines 
enounced  by  the  Courts  of  different  States  are  some- 
times just  as  great  as  the  differences  between  the  views 
of  the  Courts  of  Massachusetts  or  New  Jersey  and  those 
of  Courts  in  England. 

The  same  is  true  of  the  self-governing  British  colonies. 
In  them  also  legislation  has  introduced  deviations  from 
the  law  of  the  mother  country.  More  than  forty  years 
ago  New  Zealand,  for  instance,  repealed  the  Statute  of 
Uses,  which  is  the  corner-stone  of  English  conveyancing  ; 
and  the  Australian  legislatures  have  altered  (among 
other  things)  the  English  marriage  law.  But  even  if  the 
changes  made  by  statute  had  been  far  greater  than  they 
have  been,  and  even  if  there  were  not,  as  there  still  is,  a 
right  of  appeal  from  the  highest  Courts  of  these  colonies 
to  the  Crown  in  Council,  their  law  should  still  remain, 
in  all  its  essential  features,  a  genuine  and  equally  legiti- 
mate offspring  of  the  ancient  Common  Law. 

We  come  now  to  the  territories  conquered  by  Eng- 
land, and  to  which  she  has  given  her  law  whether  in 
whole  or  in  part.  Among  these  it  is  only  of  India  that 
I  shall  speak,  as  India  presents  the  phenomena  of  contact 
between  the  law  of  the  conqueror  and  that  of  the  con- 
quered on  the  largest  scale  and  in  the  most  instructive 
form.  What  the  English  have  done  in  India  is  being 
done  or  will  have  to  be  done,  though  nowhere  else  on 
so  vast  a  scale,  by  the  other  great  nations  which  have 
undertaken  the  task  of  ruling  and  of  bestowing  what  are 
called  the  blessings  of  civilization  upon  the  backward 
races.    Russia,  France,  Germany,  and  now  the  United 


ROMAN  AND  ENGLISH  LAW  97 

States  also,  all  see  this  task  before  them.  To  them  there- 
fore, as  well  as  to  England,  the  experience  of  the  British 
Government  in  India  may  be  profitable. 

VI.  English  Law  in  India. 

When  the  English  began  to  conquer  India  they  found 
two  great  systems  of  customary  law  in  existence  there, 
the  Musulman  and  the  Hindu.  There  were  other 
minor  bodies  of  custom,  prevailing  among  particular 
sects,  but  these  may  for  the  present  be  disregarded. 
Musulman  law  regulated  the  life  and  relations  of  all 
Musulmans ;  and  parts  of  it,  especially  its  penal  pro- 
visions, were  also  applied  by  the  Musulman  potentates 
to  their  subjects  generally,  Hindus  included.  The 
Musulman  law  had  been  most  fully  worked  out  in  the 
departments  of  family  relations  and  inheritance,  in  some 
few  branches  of  the  law  of  contract,  such  as  money  loans 
and  mortgages  and  matters  relating  to  sale,  and  in 
the  doctrine  of  charitable  or  pious  foundations  called 
Wakuf. 

In  the  Hindu  principalities,  Hindu  law  was  dominant, 
and  even  where  the  sovereign  was  a  Musulman,  the 
Hindu  law  of  family  relations  and  of  inheritance  was 
recognized  as  that  by  which  Hindus  lived.  There  were 
also  of  course  many  land  customs,  varying  from  district 
to  district,  which  both  Hindus  and  Musulmans  observed, 
as  they  were  not  in  general  directly  connected  with 
religion.  In  some  regions,  such  as  Oudh  and  what  are 
now  the  North-West  provinces,  these  customs  had  been 
much  affected  by  the  land  revenue  system  of  the  Mogul 
Emperors.  It  need  hardly  be  said  that  where  Courts 
of  law  existed,  they  administered  an  exceedingly  rough 
and  ready  kind  of  justice,  or  perhaps  injustice,  for 
bribery  and  favouritism  were  everywhere  rampant. 

There  were  also  mercantile  customs,  which  were 
generally  understood  and  observed  by  traders,  and 
which,  with  certain  speciallv  Musulman  rules  recog- 
7 


98  ROM  AX  AND   ENGLISH  LAW 

nized  in  Musulman  States,  made  up  what  there  was  of 
a  law  of  contracts. 

Thus  one  may  say  that  the  law  (other  than  purely 
religious  law)  which  the  English  administrators  in  the 
days  of  Clive  and  Warren  Hastings  found  consisted  of — 

First,  a  large  and  elaborate  system  of  Inheritance 
and  Family  Law,  the  Musulman  pretty  uniform  through- 
out India,  though  in  some  regions  modified  by  Hindu 
custom,  the  Hindu  less  uniform.  Each  was  utterly 
unlike  English  law  and  incapable  of  being  fused  with 
it.  Each  was  closely  bound  up  with  the  religion  and 
social  habits  of  the  people.  Each  was  contained  in 
treatises  of  more  or  less  antiquity  and  authority,  some 
of  the  Hindu  treatises  very  ancient  and  credited  with 
almost  divine  sanction,  the  Musulman  treatises  of  course 
posterior  to  the  Koran,  and  consisting  of  commentaries 
upon  that  Book  and  upon  the  traditions  that  had  grown 
up  round  it. 

Secondly,  a  large  mass  of  customs  relating  to  the 
occupation  and  use  of  land  and  of  various  rights  con- 
nected with  tillage  and  pasturage,  including  water-rights, 
rights  of  soil-accretion  on  the  banks  of  rivers,  and 
forest-rights.  The  agricultural  system  and  the  revenue 
system  of  the  country  rested  upon  these  land  customs, 
which  were  of  course  mostly  unwritten  and  which  varied 
widely  in  different  districts. 

Thirdly,  a  body  of  customs,  according  to  our  ideas 
comparatively  scanty  and  undeveloped,  but  still  impor- 
tant, relating  to  the  transfer  and  pledging  of  property, 
and  to  contracts,  especially  commercial  contracts. 

Fourthly,  certain  penal  rules  drawn  from  Musulman 
law  and  more  or  less  enforced  by  Musulman  princes. 

Thus  there  were  considerable  branches  of  law  prac- 
tically non-existent.  There  was  hardly  any  law  of  civil 
and  criminal  procedure,  because  the  methods  of  justice 
were  primitive,  and  would  have  been  cheap,  but  for  the 
prevalence  of  corruption  among  judges  as  well  as  wit- 
nesses.   There  was  very  little  of  the  law  of  Torts  or  Civil 


ROMAN  AND  ENGLISH  LAW  99 

Wrongs,  and  in  the  law  of  property  of  contracts  and  of 
crimes,  some  departments  were  wanting  or  in  a  rudimen- 
tary condition.  Of  a  law  relating  to  public  and  constitu- 
tional rights  there  could  of  course  be  no  question,  since 
no  such  rights  existed. 

In  this  state  of  facts  the  British  officials  took  the  line 
which  practical  men,  having  their  hands  full  of  other 
work,  would  naturally  take,  viz.  the  line  of  least  re- 
sistance. They  accepted  and  carried  on  what  they  found. 
Where  there  was  a  native  law,  they  applied  it,  Musul- 
man  law  to  Musulmans,  Hindu  law  to  Hindus,  and  in 
the  few  places  where  they  were  to  be  found,  Parsi  law 
to  Parsis,  Jain  law  to  Jains.  Thus  men  of  every  creed 
— for  it  was  creed,  not  race  nor  allegiance  by  which  men 
were  divided  and  classified  in  India — lived  each  accord- 
ing to  his  own  law,  as  Burgundians  and  Franks  and 
Romanized  Gauls  had  done  in  the  sixth  century  in  Eu- 
rope. The  social  fabric  was  not  disturbed,  for  the  land 
customs  and  the  rules  of  inheritance  were  respected, 
and  of  course  the  minor  officers,  with  whom  chiefly  the 
peasantry  came  in  contact,  continued  to  be  natives.  Thus 
the  villager  scarcely  felt  that  he  was  passing  under  the 
dominion  of  an  alien  power,  professing  an  alien  faith. 
His  life  flowed  on  in  the  same  equable  course  beside  the 
little  white  mosque,  or  at  the  edge  of  the  sacred  grove.  A 
transfer  of  power  from  a  Hindu  to  a  Musulman  sovereign 
would  have  made  more  difference  to  him  than  did  the 
establishment  of  British  rule ;  and  life  was  more  placid 
than  it  would  have  been  under  either  a  rajah  or  a  sultan, 
for  the  marauding  bands  which  had  been  the  peasants' 
terror  were  soon  checked  by  European  officers. 

So  things  remained  for  more  than  a  generation.  So 
indeed  things  remain  still  as  respects  those  parts  of 
law  which  are  inwoven  with  religion,  marriage,  adop- 
tion (among  Hindus)  and  other  family  relations,  and 
with  the  succession  to  property.  In  all  these  matters 
native  law  continues  to  be  administered  by  the  Courts 
the  English  have  set  up;  and  when  cases  are  appealed 


100  ROMA  V     1  \7)    ENGLISH    I.  HI 

from  the  highest  of  those  Courts  to  the  Privy  Council 
in  England,  that  respectable  body  determines  the  true 
construction  to  be  put  on  the  Koran  and  the  Islamic 
Traditions,  or  on  passages  from  the  mythical  Manu,  in 
the  same  business-like  way  as  it  would  the  meaning  of 
an  Australian  statute1.  Except  in  some  few  points  to 
be  presently  noted,  the  Sacred  Law  of  Islam  and  that 
of  Brahmanism  remain  unpolluted  by  European  ideas. 
Yet  they  have  not  stood  unchanged,  for  the  effect  of 
the  more  careful  and  thorough  examination  which  the 
contents  of  these  two  systems  have  received  from  advo- 
cates, judges,  and  text-writers,  both  native  and  English, 
imbued  with  the  scientific  spirit  of  Europe,  has  been 
to  clarify  and  define  them,  and  to  develop  out  of  the  half- 
fluid  material  more  positive  and  rigid  doctrines  than  had 
been  known  before.  Something  like  this  may  probably 
have  been  done  by  the  Romans  for  the  local  or  tribal 
law  of  their  provinces. 

In  those  departments  in  which  the  pre-existing  cus- 
toms were  not  sufficient  to  constitute  a  body  of  law 
large  enough  and  precise  enough  for  a  civilized  Court 
to  work  upon,  the  English  found  themselves  obliged 
to  supply  the  void.  This  was  done  in  two  ways.  Some- 
times the  Courts  boldly  applied  English  law.  Sometimes 
they  supplemented  native  custom  by  common  sense, 
i.e.  by  their  own  ideas  of  what  was  just  and  fair.  The 
phrase  '  equity  and  good  conscience  '  was  used  to  em- 
body the  principles  by  which  judges  were  to  be  guided 
when  positive  rules,  statutory  or  customary,  were  not 
forthcoming.  To  a  magistrate  who  knew  no  law  at  all, 
these  words  would  mean  that  he  might  follow  his  own 
notions  of  '  natural  justice,'  and  he  would  probably  give 
more  satisfaction  to  suitors  than  would  his  more  learned 

1  It  is  related  that  a  hill  tribe  of  Kols,  in  Central  India,  had  a  dispute  with  the 
Government  of  India  over  some  question  of  forest-rights.  The  case  having  gone 
in  their  favour,  the  Government  appealed  to  the  Judicial  Committee.  Shortly 
afterwards  a  passing  traveller  found  the  elders  of  the  tribe  assembled  at  the  sit  ri- 
fice  of  a  kid.  He  Inquired  what  deity  was  being  propitiated,  and  was  told  that  it 
was  a  deity  powerful  but  remote,  whose  name  was  Privy  Council. 


ROM  AX  AND   ENGLISH  LAW  101 

brother,  trying  to  apply  confused  recollections  of  Black- 
stone  or  Chitty.  In  commercial  matters  common  sense 
would  be  aided  by  the  usage  of  traders.  In  cases  of  Tort 
native  custom  was  not  often  available,  but  as  the  magi- 
strate who  dealt  out  substantial  justice  would  give  what 
the  people  had  rarely  obtained  from  the  native  courts, 
they  had  no  reason  to  complain  of  the  change.  As 
to  rules  of  evidence,  the  young  Anglo-Indian  civilian 
would,  if  he  were  wise,  forget  all  the  English  techni- 
calities he  might  have  learnt,  and  make  the  best  use 
he  could  of  his  mother-wit 1. 

For  the  first  sixty  years  or  more  of  British  rule  there 
was  accordingly  little  or  no  attempt  to  Anglify  the  law 
of  India,  or  indeed  to  give  it  any  regular  and  systematic 
form.  Such  alterations  as  it  underwent  were  the 
natural  result  of  its  being  dispensed  by  Europeans. 
But  to  this  general  rule  there  were  two  exceptions, 
the  law  of  Procedure  and  the  law  of  Crimes.  Courts 
had  been  established  in  the  Presidency  towns  even 
before  the  era  of  conquest  began.  As  their  business 
increased  and  subordinate  Courts  were  placed  in  the 
chief  towns  of  the  annexed  provinces,  the  need  for  some 
regular  procedure  was  felt.  An  Act  of  the  British 
Parliament  of  a.d.  1781  empowered  the  Indian  Govern- 
ment to  make  regulations  for  the  conduct  of  the  pro- 
vincial Courts,  as  the  Court  at  Fort  William  (Calcutta) 
had  already  been  authorized  to  do  for  itself  by  an  Act 
of  1773.  Thus  a  regular  system  of  procedure,  modelled 
after  that  of  England,  was  established ;  and  the  Act 
of  1781  provided  that  the  rules  and  forms  for  the  exe- 
cution of  process  were  to  be  accommodated  to  the 
religion  and  manners  of  the  natives. 

As  respects  penal  law,  the  English  began  by  adopt- 
ing that  which  the  Musulman  potentates  had  been  ac- 
customed to  apply.     But  they  soon  found  that  many 

1  For  the  facts  given  in  the  following  pages  I  am  much  indebted  to  the  singu- 
larly lucid  and  useful  treatise  of  Sir  C.  P.  Ilbert  (formerly  Legal  Member  of  the 
Viceroy's  Council)  entitled  The  Government  0/ India. 


102  ROMAH    AND   ENGLISH   LAW 

of  its  provisions  were  such  as  a  civilized  and  nominally 
Christian  government  could  not  enforce.  Mutilation 
as  a  punishment  for  theft,  for  instance,  and  stoning 
for  sexual  offences,  were  penalties  not  suited  to  Euro- 
pean notions ;  and  still  less  could  the  principle  be 
admitted  that  the  evidence  of  a  non-Musulman  is  not 
receivable  against  one  of  the  Faithful.  Accordingly 
a  great  variety  of  regulations  were  passed  amending 
the  Musulman  law  of  crimes  from  an  English  point 
of  view.  In  Calcutta  the  Supreme  Court  did  not  hesi- 
tate to  apply  English  penal  law  to  natives ;  and  applied 
it  to  some  purpose  at  a  famous  crisis  in  the  fortunes  of 
Warren  Hastings  when  (in  1775)  it  hanged  Nuncomar 
for  forgery  under  an  English  statute  of  1728,  which  in 
the  opinion  of  many  high  authorities  of  a  later  time 
had  never  come  into  force  at  all  in  India.  It  was  inevi- 
table that  the  English  should  take  criminal  jurisdiction 
into  their  own  hands — the  Romans  had  done  the  same  in 
their  provinces — and  inevitable  also  that  they  should 
alter  the  penal  law  in  conformity  with  their  own  ideas. 
But  they  did  so  in  a  very  haphazard  fashion.  The  crimi- 
nal law  became  a  patchwork  of  enactments  so  con- 
fused that  it  was  the  first  subject  which  invited  codifica- 
tion in  that  second  epoch  of  English  rule  which  we  are 
now  approaching. 

Before  entering  on  this  remarkable  epoch,  one  must 
remember  that  the  English  in  India,  still  a  very  small 
though  important  class,  were  governed  entirely  by 
English  law.  So  far  as  common  law  and  equity  went, 
this  law  was  exactly  the  same  as  the  contemporaneous 
law  of  England.  But  it  was  complicated  by  the  fact  that 
a  number  of  Regulations,  as  they  were  called,  had  been 
enacted  for  India  by  the  local  government,  that  many 
British  statutes  were  not  intended  to  apply  and  proba- 
bly did  not  apply  to  India  (though  whether  they  did  or 
not  was  sometimes  doubtful),  and  that  a  certain  number 
of  statutes  had  been  enacted  by  Parliament  expressly 
for    India.      Thus    though    the    law    under    which    the 


ROMAN  AND  EN0L1HU  LAW  103 

English  lived  had  not  been  perceptibly  affected  by 
Indian  customs,  it  was  very  confused  and  troublesome 
to  work.  That  the  learning  of  the  judges  sent  from 
home  to  sit  in  the  Indian  Courts  was  seldom  equal  to 
that  of  the  judges  in  England  was  not  necessarily  a  dis- 
advantage, for  in  traversing  the  jungle  of  Indian  law 
the  burden  of  English  case  lore  would  have  too  much 
impeded  the  march  of  justice. 

The  first  period  of  English  rule,  the  period  of  rapid 
territorial  extension  and  of  improvised  government,  may 
be  said  to  have  ended  with  the  third  Maratha  war  of 
1817-8.  The  rule  of  Lord  Amherst  and  Lord  William 
Bentinck  (1823-35)  was  a  comparatively  tranquil  period, 
when  internal  reforms  had  their  chance,  as  they  had  in 
the  Roman  Empire  under  Hadrian  and  Antoninus  Pius. 
This  was  also  the  period  when  a  spirit  of  legal  reform 
was  on  foot  in  England.  It  was  the  time  when  the 
ideas  of  Bentham  had  begun  to  bear  fruit,  and  when 
the  work  begun  by  Romilly  was  being  carried  on  by 
Brougham  and  others.  Both  the  law  applied  to  English- 
men, and  such  parts  of  native  law  as  had  been  cut 
across,  filled  up,  and  half  re-shaped  by  English  legal 
notions  and  rules,  called  loudly  for  simplification  and 
reconstruction. 

The  era  of  reconstruction  opened  with  the  enactment, 
in  the  India  Charter  Act  of  1833,  of  a  clause  declaring 
that  a  general  judicial  system  and  a  general  body  of 
law  ought  to  be  established  in  India  applicable  to  all 
classes,  Europeans  as  well  as  natives,  and  that  all  laws 
and  customs  having  legal  force  ought  to  be  ascertained, 
consolidated,  and  amended.  The  Act  then  went  on  to 
provide  for  the  appointment  of  a  body  of  experts  to 
be  called  the  Indian  Law  Commission,  which  was  to 
inquire  into  and  report  upon  the  Courts,  the  procedure 
and  the  law  then  existing  in  India.  Of  this  commis- 
sion Macaulay,  appointed  in  1833  legal  member  of  the 
Governor-General's  Council,  was  the  moving  spirit :  and 
with  it  the  work  of  codification  began.     It  prepared 


104  kOMAh    AND   ENGLISH   l.\w 

a  Penal  Code,  which  however  was  not  passed  into  law 
until  i860,  for  its  activity  declined  after  Maeaulay's 
return  to  England  and  strong  opposition  was  offered 
to  his  draft  by  many  of  the  Indian  judges.  A  second 
Commission  was  appointed  under  an  Act  of  1853,  and 
sat  in  England.  It  secured  the  enactment  of  the  Penal 
Code,  and  of  Codes  of  Civil  and  of  Criminal  Procedure. 
A  third  Commission  was  created  in  1861,  and  drafted 
other  measures.  The  Government  of  India  demurred 
to  some  of  the  proposed  changes  and  evidently  thought 
that  legislation  was  being  pressed  on  rather  too  fast. 
The  Commission,  displeased  at  this  resistance,  resigned 
in  1870;  and  since  then  the  work  of  preparing  as  well 
as  of  carrying  through  codifying  Acts  has  mostly  been 
done  in  India.  The  net  result  of  the  sixty-six  years 
that  have  passed  since  Macaulay  set  to  work  in  1834 
is  that  Acts  codifying  and  amending  the  law,  and  de- 
claring it  applicable  to  both  Europeans  and  natives, 
have  been  passed  on  the  topics  following : — 

Crimes  (i860). 

Criminal  Procedure  (1861,  1882,  and  1898). 

Civil  Procedure  (1859  and  1882). 

Evidence  (1872). 

Limitation  of  Actions  (1877). 

Specific  Relief  (1877). 

Probate  and  Administration  (1881). 

Contracts  (1872)  (but  only  the  general  rules  of  con- 
tract with  a  few  rules  on  particular  parts  of  the  subject). 

Negotiable  Instruments  (1881)  (but  subject  to  native 
customs). 

Besides  these,  codifying  statutes  have  been  passed 
which  do  not  apply  (at  present)  to  all  India,  but  only  to 
parts  of  it,  or  to  specified  classes  of  the  population, 
on  the  topics  following: — 

Trusts  (1882). 

Transfer  of  Property  (1882). 

Succession  (1865). 

Easements  (1882). 


ROMAN  AND   ENGLISH    LAW  105 

Guardians  and  Wards  (1890). 

These  statutes  cover  a  large  part  of  the  whole  field 
of  law,  so  that  the  only  important  departments  not  yet 
dealt  with  are  those  of  Torts  or  Civil  Wrongs  (on  which 
a  measure  not  yet  enacted  was  prepared  some  years 
ago) ;  certain  branches  of  contract  law,  which  it  is  not 
urgent  to  systematize  because  they  give  rise  to  lawsuits 
only  in  the  large  cities,  where  the  Courts  are  quite  able 
to  dispose  of  them  in  a  satisfactory  way ;  Family  Law, 
which  it  would  be  unsafe  to  meddle  with,  because  the 
domestic  customs  of  Hindus,  Musulmans,  and  Euro- 
peans are  entirely  different ;  and  Inheritance,  the  greater 
part  of  which  is,  for  the  same  reason,  better  left  to 
native  custom.  Some  points  have,  however,  been 
covered  by  the  Succession  Act  already  mentioned. 
Thus  the  Government  of  India  appear  to  think  that  they 
have  for  the  present  gone  as  far  as  they  prudently  can 
in  the  way  of  enacting  uniform  general  laws  for  all 
classes  of  persons.  Further  action  might  displease 
either  the  Hindus  or  the  Musulmans,  possibly  both : 
and  though  there  would  be  advantages  in  bringing  the 
law  of  both  these  sections  of  the  population  into  a  more 
clear  and  harmonious  shape,  it  would  in  any  case  be 
impossible  to  frame  rules  which  would  suit  both  of 
them,  and  would  also  suit  the  Europeans.  Here  Religion 
steps  in,  a  force  more  formidable  in  rousing  opposition 
or  disaffection  than  any  which  the  Romans  had  to  fear. 

In  such  parts  of  the  law  as  are  not  covered  by  these 
enumerated  Acts,  Englishmen,  Hindus  and  Musulmans 
continue  to  live  under  their  respective  laws.  So  do 
Parsis,  .Sikhs,  Buddhists  (most  numerous  in  Burma), 
and  Jains,  save  that  where  there  is  really  no  native  law 
or  custom  that  can  be  shown  to  exist,  the  judge  will 
naturally  apply  the  principles  of  English  law,  handling 
them,  if  he  knows  how,  in  an  untechnical  way.  Thus 
beside  the  new  stream  of  united  law  which  has  its  source 
in  the  codifying  Acts,  the  various  older  streams  of  law, 
each  representing  a  religion,  flow  peacefully  on. 


106  HOMAN  AXD   EM! Lis II    I^iW 

The  question  which  follows — What  has  been  the  ac- 
tion on  the  other  of  each  of  these  elements?  resolves 
itself  into  three  questions  : — 

How  far  has  English  Law  affected  the  Native  Law 
which  remains  in  force  ? 

How  far  has  Native  Law  affected  the  English  Law 
which  is  in  force  ? 

How  have  the  codifying  Acts  been  framed — i.e.  are 
they  a  compromise  between  the  English  and  the  native 
element,  or  has  either  predominated  and  given  its  colour 
to  the  whole  mass  ? 

The  answer  to  the  first  question  is  that  English 
influence  has  told  but  slightly  upon  those  branches  of 
native  law  which  had  been  tolerably  complete  before 
the  British  conquest,  and  which  are  so  interwoven  with 
religion  that  one  may  almost  call  them  parts  of  religion. 
The  Hindu  and  Musulman  customs  which  regulate  the 
family  relations  and  rights  of  succession  have  been  pre- 
cisely defined,  especially  those  of  the  Hindus,  which  were 
more  fluid  than  the  Muslim  customs,  and  were  much 
less  uniform  over  the  whole  country.  Trusts  have  been 
formally  legalized,  and  their  obligation  rendered  stronger. 
Adoption  has  been  regularized  and  stiffened,  for  its 
effects  had  been  uncertain  in  their  legal  operation. 
Where  several  doctrines  contended,  one  doctrine  has 
been  affirmed  by  the  English  Courts,  especially  by  the 
Privy  Council  as  ultimate  Court  of  Appeal,  and  the 
others  set  aside.  Moreover  the  Hindu  law  of  Wills 
has  been  in  some  points  supplemented  by  English 
legislation,  and  certain  customs  repugnant  to  European 
ideas,  such  as  the  self-immolation  of  the  widow  on  the 
husband's  funeral  pyre,  have  been  abolished.  And  in 
those  parts  of  law  which,  though  regulated  by  local 
custom,  were  not  religious,  some  improvements  have 
been  effected.  The  rights  ot  the  agricultural  tenant  have 
been  placed  on  a  more  secure  basis.  Forest-rights 
have  been  ascertained  and  defined,  partly  no  doubt  for 
the  sake  of  the  pecuniary  interests  which  the  Govern- 


ROMAN  AXD   ENGLISH   LAW  107 

ment  claims  in  them,  and  which  the  peasantry  do  not 
always  admit.  But  no  attempt  has  been  made  to  Anglify 
these  branches  of  law  as  a  whole. 

On  the  other  hand,  the  law  applicable  to  Europeans 
only  has  been  scarcely  (if  at  all)  affected  by  native 
law.  It  remains  exactly  what  it  is  in  England,  except 
in  so  far  as  the  circumstances  of  India  have  called  for 
special  statutes. 

The  third  question  is  as  to  the  contents  of  those 
parts  of  the  law  which  are  common  to  Europeans  and 
Natives,  that  is  to  say,  the  parts  dealt  by  the  codifying 
Acts  already  enumerated.  Here  English  law  has  deci- 
sively prevailed.  It  has  prevailed  not  only  because 
it  would  be  impossible  to  subject  Europeans  to  rules 
emanating  from  a  different  and  a  lower  civilization,  but 
also  because  native  custom  did  not  supply  the  requisite 
materials.  Englishmen  had  nothing  to  learn  from  na- 
tives as  respects  procedure  or  evidence.  The  native 
mercantile  customs  did  not  constitute  a  system  even  of 
the  general  principles  of  contract,  much  less  had  those 
principles  been  worked  out  in  their  details.  Accordingly 
the  Contract  Code  is  substantially  English,  and  where 
it  differs  from  the  result  of  English  cases,  the  differences 
are  due,  not  to  the  influence  of  native  ideas  or  native 
usage,  but  to  the  views  of  those  who  prepared  the 
Code,  and  who,  thinking  the  English  case-law  sus- 
ceptible of  improvement,  diverged  from  it  here  and 
there  just  as  they  might  have  diverged  had  they  been 
preparing  a  Code  to  be  enacted  for  England.  There 
are,  however,  some  points  in  which  the  Penal  Code 
shows  itself  to  be  a  system  intended  for  India.  The 
right  of  self-defence  is  expressed  in  wider  terms  than 
would  be  used  in  England,  for  Macaulay  conceived  that 
the  slackness  of  the  native  in  protecting  himself  by  force 
made  it  desirable  to  depart  a  little  in  this  respect  from 
the  English  rules.  Offences  such  as  dacoity  (brigandage 
by  robber  bands),  attempts  to  bribe  judges  or  witnesses, 
the  use  of  torture  by  policemen,  kidnapping,  the  offering 


108  UOMAh   -I  \/'  ENGLISH   LAW 

of  insult  or  injury  to  sacred  places,  have  been  dealt  with 
more  fully  and  specifically  than  would  be  necessary  in 
a  Criminal  Code  for  England.  Adultery  has,  conform- 
ably to  the  ideas  of  the  East,  been  made  a  subject  for 
criminal  proceedings.  Nevertheless  these,  and  other 
similar,  deviations  from  English  rules  which  may  be 
found  in  the  Codes  enacted  for  Europeans  and  natives 
alike,  do  not  affect  the  general  proposition  that  the  codes 
are  substantially  English.  The  conquerors  have  given 
their  law  to  the  conquered.  When  the  conquered  had 
a  law  of  their  own  which  this  legislation  has  effaced,  the 
law  of  the  conquerors  was  better.  Where  they  had  one 
too  imperfect  to  suffice  for  a  growing  civilization,  the 
law  of  the  conquerors  was  inevitable. 

VII.    The  Working  of  the  Indian  Codes. 

Another  question  needs  to  be  answered.  It  has  a 
twofold  interest,  because  the  answer  not  only  affects 
the  judgement  to  be  passed  on  the  course  which  the 
English  Government  in  India  has  followed,  but  also 
conveys  either  warning  or  encouragement  to  England 
herself.  This  question  is — How  have  these  Indian 
Codes  worked  in  practice  ?  Have  they  improved  the 
administration  of  justice  ?  Have  they  given  satisfaction 
to  the  people  ?  Have  they  made  it  easier  to  know  the 
law,  to  apply  the  law,  to  amend  the  law  where  it  proves 
faulty  ? 

When  I  travelled  in  India  in  1888-9  I  obtained 
opinions  on  these  points  from  many  persons  competent 
to  speak.  There  was  a  good  deal  of  difference  of  view, 
but  the  general  result  seemed  to  be  as  follows.  I  take 
the  four  most  important  codifying  Acts,  as  to  which 
it  was  most  easy  to  obtain  profitable  criticisms. 

The  two  Procedure  Codes.  Civil  and  Criminal,  were 
very  generally  approved.  They  were  not  originally 
creative  work,  bu1  were  produced  by  consolidating  and 
simplifying  a  mass  of  existing  Statutes  and  regulations, 


ROMAN  AND   ENGLISH  LAW  109 

which  had  become  unwieldy  and  confused.  Order 
was  evoked  out  of  chaos,  a  result  which,  though  bene- 
ficial everywhere,  was  especially  useful  in  the  minor 
Courts,  whose  judges  had  less  learning  and  experience 
than  those  of  the  five  High  Courts  at  Calcutta,  Madras, 
Bombay,  Allahabad  and  Lahore. 

The  Penal  Code  was  universally  approved ;  and  it 
deserves  the  praise  bestowed  on  it,  for  it  is  one  of  the 
noblest  monuments  of  Macaulay's  genius.  To  appre- 
ciate its  merits,  one  must  remember  how  much,  when 
prepared  in  1834,  it  was  above  the  level  of  the  English 
criminal  law  of  that  time.  The  subject  is  eminently 
fit  to  be  stated  in  a  series  of  positive  propositions,  and 
so  far  as  India  was  concerned,  it  had  rested  mainly 
upon  statutes  and  not  upon  common  law.  It  has  been 
dealt  with  in  a  scientific,  but  also  a  practical  common- 
sense  way :  and  the  result  is  a  body  of  rules  which 
are  comprehensible  and  concise.  To  have  these  on 
their  desks  has  been  an  immense  advantage  for  magis- 
trates in  the  country  districts,  many  of  whom  have  had 
but  a  scanty  legal  training.  It  has  also  been  claimed 
for  this  Code  that  under  it  crime  has  enormously 
diminished :  but  how  much  of  the  diminution  is  due 
to  the  application  of  a  clear  and  just  system  of  rules. 
how  much  to  the  more  efficient  police  administra- 
tion, is  a  question  on  which  I  cannot  venture  to 
pronounce 1 . 

No  similar  commendation  was  bestowed  on  the  Evi- 
dence Code.  Much  of  it  was  condemned  as  being 
too  metaphysical,  yet  deficient  in  subtlety.  Much  was 
deemed  superfluous,  and  because  superfluous,  possibly 
perplexing.  Yet  even  those  who  criticized  its  drafting 
admitted  that  it  might  possibly  be  serviceable  to  un- 
trained magistrates  and  practitioners,  and  I  have  myself 
heard  some  of  these  untrained  men  declare  that  thev 


1  The  merits  of  this  Code  are  discussed  in  an  interesting  and  suggestive  man- 
ner by  Mr.  H.  Speyer  in  an  article  entitled  Le  Droit  Pinal  Anglo-iitdien,  which 
appeared  in  the  Revtie  de  V '  UnivcrsitJ  de  BruxelUs  in  April,  1900. 


110  ROMAN  AND  ENGLISH  LAW 

did  find  it  helpful.    They  are  a  class  relatively  larger  in 
India  than  in  England. 

It  was  with  regard  to  the  merits  of  the  Contract  Code 
that  the  widest  difference  of  opinion  existed.  Any  one 
who  reads  it  can  see  that  its  workmanship  is  defective. 
It  is  neither  exact  nor  suhtle,  and  its  language  is  often 
far  from  lucid.  Every  one  agreed  that  Sir  J.  F.  Stephen 
(afterwards  Mr.  Justice  Stephen),  who  put  it  into  the 
shape  in  which  it  was  passed  during  his  term  of  office 
as  Legal  Member  of  Council,  and  was  also  the  author  of 
the  Evidence  Act,  was  a  man  of  great  industry,  much 
intellectual  force,  and  warm  zeal  for  codification.  But 
his  capacity  for  the  work  of  drafting  was  deemed  not 
equal  to  his  fondness  for  it.  He  did  not  shine  either- in 
fineness  of  discrimination  or  in  delicacy  of  expression. 
Indian  critics,  besides  noting  these  facts;  went  on  to 
observe  that  in  country  places  four-fifths  of  the  pro- 
visions of  the  Contract  Act  were  superfluous,  while 
those  which  were  operative  sometimes  unduly  fettered 
the  discretion  of  the  magistrate  or  judge,  entangling  him 
in  technicalities,  and  preventing  him  from  meting  out 
that  substantial  justice  which  is  what  the  rural  suitor 
needs.  The  judge  cannot  disregard  the  Act,  because 
if  the  case  is  appealed,  the  Court  above,  which  has 
only  the  notes  of  the  evidence  before  it,  and  does  not 
hear  the  witnesses,  is  bound  to  enforce  the  provisions  of 
the  law.  In  a  country  like  India,  law  ought  not  to  be  too 
rigid:  nor  ought  rights  to  be  stiffened  up  so  strictly  as 
they  are  by  this  Contract  Act.  Creditors  had  already, 
through  the  iron  regularity  with  which  the  British 
Courts  enforce  judgements  by  execution,  obtained  far 
more  power  over  debtors  than  they  possessed  in  the 
old  days,  and  more  than  the  benevolence  of  the  English 
administrator  approves.  The  Contract  Act  increases  this 
power  still  further.  This  particular  criticism  does  not 
reflect  upon  the  technical  merits  of  the  Act  in  itself, 
lint  it  does  SUggesI  reasons  which  would  not  occur  to 
a  European  mind,  why  it  may  be  inexpedient  by  making 


ROMAN  AND    ENGLISH  LAW  111 

the  law  too  precise  to  narrow  the  path  in  which  the 
judge  has  to  walk.  A  stringent  administration  of  the 
letter  of  the  law  is  in  semi-civilized  communities  no 
unmixed  blessing. 

So  much  for  the  rural  districts.  In  the  Presidency 
cities,  on  the  other  hand,  the  Contract  Code  is  by  most 
experts  pronounced  to  be  unnecessary.  The  judges 
and  the  bar  are  already  familiar  with  the  points  which 
it  covers,  and  find  themselves — so  at  least  many  of  them 
say — rather  embarrassed  than  aided  by  it.  They  think 
it  cramps  their  freedom  of  handling  a  point  in  argument. 
They  prefer  the  elasticity  of  the  common  law.  And  in 
point  of  fact,  they  seem  to  make  no  great  use  of  the  Act, 
but  to  go  on  just  as  their  predecessors  did  before  it  was 
passed. 

These  criticisms  may  need  to  be  discounted  a  little, 
in  view  of  the  profound  conservatism  of  the  legal  pro- 
fession, and  of  the  dislike  of  men  trained  at  the  Temple 
or  Lincoln's  Inn  to  have  anything  laid  down  or  applied 
on  the  Hooghly  which  is  not  being  done  at  the  same 
moment  on  the  Thames.  And  a  counterpoise  to  them 
may  be  found  in  the  educational  value  which  is  attri- 
buted to  the  Code  by  magistrates  and  lawyers  who  have 
not  acquired  a  mastery  of  contract  law  through  systema- 
tic instruction  or  through  experience  at  home.  To  them 
the  Contract  Act  is  a  manual  comparatively  short  and 
simple,  and  also  authoritative ;  and  they  find  it  useful 
in  enabling  them  to  learn  their  business.  On  the  whole, 
therefore,  though  the  Code  does  not  deserve  the  credit 
which  has  sometimes  been  claimed  for  it,  one  may  hesi- 
tate to  pronounce  its  enactment  a  misfortune.  It  at  any 
rate  provides  a  basis  on  which  a  really  good  Code  of 
contractual  law  may  some  day  be  erected. 

Taking  the  work  of  Indian  codification  as  a  whole,  it 
has  certainly  benefited  the  country.  The  Penal  Code 
and  the  two  Codes  of  Procedure  represent  an  unmixed 
gain.  The  same  may  be  said  of  the  consolidation  of  the 
statute  law,  for  which  so  much  was  done  by  the  energy 


113  ltOMAS    AXI>    KX0LISI1   LA)Y 

and  skill  of  Mr.  Whitley  Stokes.  And  the  other  codify- 
ing acts  have  on  the  whole  tended  both  to  improve  the 
substance  of  the  law  and  to  make  it  more  accessible. 
Their  operation  has,  however,  been  less  complete  than 
most  people  in  Europe  realize,  for  while  many  of  them 
are  confined  to  certain  districts,  others  are  largely 
modified  by  the  local  customs  which  they  have  (as  ex- 
pressed in  their  saving  clauses)  very  properly  respected. 
If  we  knew  more  about  the  provinces  of  the  Roman 
Empire  we  might  find  that  much  more  of  local  custom 
subsisted  side  by  side  with  the  apparently  universal  and 
uniform  imperial  law  than  we  should  gather  from  reading 
the  compilations  of  Justinian. 

It  has  already  been  observed  that  Indian  influences 
have  scarcely  at  all  affected  English  law  as  it  continues 
to  be  administered  to  Englishmen  in  India.  Still  less 
have  they  affected  the  law  of  England  at  home.  It  seems 
to  have  been  fancied  thirty  or  forty  years  ago,  when  law 
reform  in  general  and  codification  in  particular  occupied 
the  public  mind  more  than  they  do  now,  that  the  enact- 
ment of  codes  of  law  for  India,  and  the  success  which 
was  sure  to  attend  them  there,  must  react  upon  England 
and  strengthen  the  demand  for  the  reduction  of  her  law 
into  a  concise  and  systematic  form.  No  such  result  has 
followed.  The  desire  for  codification  in  England  has 
not  been  perceptibly  strengthened  by  the  experience  of 
India.  Nor  can  it  indeed  be  said  that  the  experience 
of  India  has  taught  jurists  or  statesmen  much  which 
they  did  not  know  before.  That  a  good  code  is  a  very 
good  thing,  and  that  a  bad  code  is,  in  a  country  which 
possesses  competent  judges,  worse  than  no  code  at 
all — these  are  propositions  which  needed  no  Indian  ex- 
perience to  verify  them.  The  imperfect  success  of  the 
Evidence  and  Contract  Acts  has  done  little  more  than 
add  another  illustration  to  those  furnished  by  the  Civil 
Code  of  California  and  the  Code  of  Procedure  in  New 
York  of  the  difficulty  which  attends  these  undertakings. 
Long  before  Indian  codification  was  talked  of,  Savigny 


ROMAN  AND   ENGLISH  LAW  113 

had  shown  how  hard  it  is  to  express  the  law  in  a  set 
of  definite  propositions  without  reducing  its  elasticity 
and  impeding  its  further  development.  His  arguments 
scarcely  touch  penal  law,  still  less  the  law  of  procedure, 
for  these  are  not  topics  in  which  much  development 
need  be  looked  for.  But  the  future  career  of  the 
Contract  Act  and  of  the  projected  Code  of  Torts,  when 
enacted,  may  supply  some  useful  data  for  testing  the 
soundness  of  his  doctrine. 

One  reason  why  these  Indian  experiments  have  so 
little  affected  English  opinion  may  be  found  in  the  fact 
that  few  Englishmen  have  either  known  or  cared  any- 
thing about  them.  The  British  public  has  not  realized 
how  small  is  the  number  of  persons  by  whom  questions 
of  legal  policy  in  India  have  during  the  last  seventy 
years  been  determined.  Two  or  three  officials  in  Down- 
ing Street  and  as  many  in  Calcutta  have  practically 
controlled  the  course  of  events,  with  little  interposition 
from  outside.  Even  when  Commissions  have  been 
sitting,  the  total  number  of  those  whose  hand  is  felt  has 
never  exceeded  a  dozen.  It  was  doubtless  much  the 
same  in  the  Roman  Empire.  Indeed  the  world  seldom 
realizes  by  how  few  persons  it  is  governed.  There  is 
a  sense  in  which  power  may  be  said  to  rest  with  the 
whole  community,  and  there  is  also  a  sense  in  which 
it  may  be  said,  in  some  governments,  to  rest  with  a 
single  autocrat.  But  in  reality  it  almost  always  rests 
with  an  extremely  small  number  of  persons,  whose 
knowledge  and  will  prevail  over  or  among  the  titular 
possessors  of  authority. 

Before  we  attempt  to  forecast  the  future  of  English 
law  in  India,  let  us  cast  a  glance  back  at  the  general 
course  of  its  history  as  compared  with  that  of  the  law 
of  Rome  in  the  ancient  world. 
8 


114  ROM  AX  AXD   EXGLISn  LAW 


VIII.    Comparison  of  the  Roman  Law  with  English 
Law  in  India. 

Rome  grew  till  her  Taw  became  first  that  of  Italy, 
then  that  of  civilized  mankind.  The  City  became  the 
World,  Urbs  became  O'rbis,  to  adopt  the  word-play 
which  was  once  so  familiar.  Her  law  was  extended 
over  her  Empire  by  three  methods: — 

Citizenship  was  gradually  extended  over  the  provinces 
till  at  last  all  subjects  had  become  citizens.     , 

Many  of  the  principles  and  rules  of  the  law  of  the 
City  were  established  and  diffused  in  the  provinces  by 
the  action  of  Roman  Magistrates  and  Courts,  and  es- 
pecially by  the  Provincial  Edict. 

The  ancient  law  of  the  City  was  itself  all  the  while 
amended,  purged  of  its  technicalities,  and  simplified  in 
form,  till  it  became  fit  to  be  the  law  of  the  World. 

Thus,  when  the  law  of  the  City  was  formally  extended 
to  the  whole  Empire  by  the  grant  of  citizenship  to  all 
subjects,  there  was  not  so  much  an  imposition  of  the 
conqueror's  law  upon  the  conquered  as  the  completion 
of  a  process  of  fusion  which  had  been  going  on  for 
fully  four  centuries.  The  fusion  was  therefore  natural ; 
and  because  it  was  natural  it  was  complete  and  final. 
The  separation  of  the  one  great  current  of  Roman  law 
into  various  channels,  which  began  in  the  fifth  century 
a.d.  and  has  continued  ever  since,  has  been  due  to 
purely  historical  causes,  and  of  late  years  (as  we  shall 
see  presently)  the  streams  that  flow  in  these  channels 
have  tended  to  come  nearer  to  one  another. 

During  the  period  of  more  than  four  centuries  (v,.c. 
241  to  a.d.  21 1-7),  when  these  three  methods  of  develop- 
ment and  assimilation  were  in  progress,  the  original 
law  of  the  City  was  being  remoulded  and  amended  in 
the  midst  of  and  under  the  influence  of  a  non-Roman 
population  of  aliens  (peregrini)  at  Rome  and  in  the 
provinces,   and   that    semi-Roman   law   which   was   ad- 


ROM  AX  AXD  EXGLISH  LAW  115 

ministered  in  the  provinces  was  being  created  by 
magistrates  and  judges  who  lived  in  the  provinces  and 
who  were,  after  the  time  of  Tiberius,  mostly  them- 
selves of  provincial  origin.  Thus  the  intelligence,  re- 
flection, and  experience  of  the  whole  community  played 
upon  and  contributed  to  the  development  of  the  law. 
Judges,  advocates,  juridical  writers  and  teachers  as  well 
as  legislators,  joined  in  the  work.  The  completed  law 
was  the  outcome  of  a  truly  national  effort.  Indeed  it  was 
largely  through  making  a  law  which  should  be  fit  for  both 
Italians  and  provincials  that  the  Romans  of  the  Empire 
became  almost  a  nation. 

In  India  the  march  of  events  has  been  different, 
because  the  conditions  were  different.  India  is  ten 
thousand  miles  from  England.  The  English  residents 
are  a  mere  handful. 

The  Indian  races  are  in  a  different  stage  of  civiliza- 
tion from  the  English.  They  are  separated  by  religion ; 
they  are  separated  by  colour. 

There  has  therefore  been  no  fusion  of  English  and 
native  law.  Neither  has  there  been  any  movement  of 
the  law  of  England  to  adapt  itself  to  become  the  law  of 
her  Indian  subjects.  English  law  has  not,  like  Roman, 
come  halfway  to  meet  the  provinces.  It  is  true  that 
no  such  approximation  was  needed,  because  English 
law  had  already  reached,  a  century  ago,  a  point  of 
development  more  advanced  than  Roman  law  had 
reached  when  the  conquest  of  the  provinces  began, 
and  the  process  of  divesting  English  law  of  its  archaic 
technicalities  went  on  so  rapidly  during  the  nineteenth 
century  under  purely  home  influences,  that  neither  the 
needs  of  India  nor  the  influences  of  India  came  into 
the  matter  at  all. 

The  Romans  had  less  resistance  to  meet  with  from 
religious  diversities  than  the  English  have  had,  for  the 
laws  of  their  subjects  had  not  so  wrapped  their  roots 
round  religious  belief  or  usage  as  has  been  the  case  in 
India.    But  they  had  more  varieties  of  provincial  custom 


116  ROMAN  AND  ENGLISH  LAW 

to  consider,  and  they  had,  especially  in  the  laws  of  the 
llellenized  provinces,  systems  more  civilized  and  ad- 
vanced first  to  recognize  and  ultimately  to  supersede 
than  any  body  of  law  which  the  English  found. 

There  is  no  class  in  India  fully  corresponding  to  the 
Roman  citizens  domiciled  in  the  provinces  during  the 
first  two  centuries  of  the  Roman  Empire.  The  Euro- 
pean British  subjects,  including  the  Eurasians,  are  com- 
paratively few,  and  they  are  to  a  considerable  extent 
a  transitory  element,  whose  true  home  is  England.  Only 
to  a  very  small  extent  do  they  enjoy  personal  immunities 
and  privileges  such  as  those  that  made  Roman  citizen 
ship  so  highly  prized,  for  the  English,  more  liberal  than 
the  Romans,  began  by  extending  to  all  natives  of  India, 
as  and  when  they  became  subjects  of  the  British  Crown, 
the  ordinary  rights  of  British  subjects  enjoyed  under 
such  statutes  as  Magna  Charta  and  the  Bill  of  Rights. 
The  natives  of  India  have  entered  into  the  labours  of  the 
barons  at  Runnymede  and  of  the  Whigs  of  1688. 

What  has  happened  has  been  that  the  English  have 
given  to  India  such  parts  of  their  own  law  (somewhat 
simplified  in  form)  as  India  seemed  fitted  to  receive. 
These  parts  have  been  applied  to  Europeans  as  well  as 
to  natives,  but  they  were  virtually  applicable  to  Euro- 
peans before  codification  began.  The  English  rulers 
have  filled  up  those  departments  in  which  there  was 
no  native  law  worthy  of  the  name,  sometimes,  however, 
respecting  local  native  customs.  Here  one  finds  an  in- 
teresting parallel  to  the  experience  of  the  Romans. 
They,  like  the  English,  found  criminal  law  and  the 
law  of  procedure  to  be  the  departments  which  could 
be  most  easily  and  promptly  dealt  with.  They,  like 
the  English,  were  obliged  to  acquiesce  in  the  retention 
by  a  part  of  the  population  of  some  ancient  customs 
regarding  the  Family  and  the  Succession  to  Property. 
But  this  Acquiescence  was  after  all  partial  and  local; 
whereas  the  English  have  neither  applied  to  India  the 
more  technical  parts  of  their  own  law,  such  as  that 


#0.1/. 1 A    AND   i:SULlUH  LAW  117 

relating  to  land,  nor  attempted  to  supersede  those  parts 
of  native  law  which  are  influenced  by  religion,  such  as 
the  parts  which  include  family  relations  and  inheritance. 
Thus  there  has  been  no  general  fusion  comparable  to 
that  which  the  beginning  of  the  third  century  a.  d.  saw 
in  the  Roman  Empire. 

As  respects  codification,  the  English  have  in  one 
sense  done  more  than  the  Romans,  in  another  sense 
less.  They  have  reduced  such  topics  as  penal  law  and 
procedure,  evidence  and  trusts,  to  a  compact  and  well- 
ordered  shape,  which  is  more  than  Justinian  did  for  any 
part  of  the  Roman  law.  But  they  have  not  brought  the 
whole  law  together  into  one  Corpus  Iuris,  and  they  have 
left  large  parts  of  it  in  triplicate,  so  to  speak,  that  is  to 
say,  consisting  of  rules  which  are  entirely  different  for 
Hindus,  for  Musulmans,  and  for  Europeans. 

Moreover,  as  it  is  the  law  of  the  conquerors  which 
has  in  India  been  given  to  the  conquered  practically 
unaffected  by  native  law,  so  also  the  law  of  England 
has  not  been  altered  by  the  process.  It  has  not  been 
substantially  altered  in  India.  The  uncodified  English 
law  there  is  the  same  (local  statutes  excepted)  as  the 
law  of  England  at  home.  Still  less  has  it  been  altered 
in  England  itself.  Had  Rome  not  acquired  her  Empire, 
her  law  would  never  have  grown  to  be  what  it  was  in 
Justinian's  time.  Had  Englishmen  never  set  foot  in 
India,  their  law  would  have  been,  so  far  as  we  can  tell, 
exactly  what  it  is  to-day. 

Neither  have  those  natives  of  India  who  correspond 
to  the  provincial  subjects  of  Rome  borne  any  recog- 
nizable share  in  the  work  of  Indian  legal  development. 
Some  of  them  have,  as  text-writers  or  as  judges, 
rendered  good  service  in  elucidating  the  ancient  Hindu 
customs.  But  the  work  of  throwing  English  law  into 
the  codified  form  in  which  it  is  now  applied  in  India  to 
Europeans  and  natives  alike  has  been  done  entirely  by 
Englishmen.  In  this  respect  also  the  more  advanced 
civilization  has  shown  its  dominant  creative  force. 


118  ROMAN  l.\D  ENGLISH   LAW 

IX.    The  Future  of  English  Law  in   India. 

Here,  however,  it  is  fit  to  remember  that  we  are  not, 
as  in  the  case  of  the  Romans,  studying  a  process  which 
has  been  completed.  For  them  it  was  completed  before 
the  fifth  century  saw  the  dissolution  of  the  western  half 
of  the  Empire.  For  India  it  is  still  in  progress.  Little 
more  than  a  century  has  elapsed  since  English  rule  was 
firmly  established;  only  half  a  century  since  the  Punjab 
and  (shortly  afterwards)  Oudh  were  annexed.  Although 
the  Indian  Government  has  prosecuted  the  work  of 
codification  much  less  actively  during  the  last  twenty 
years  than  in  the  twenty  years  preceding,  and  seems  to 
conceive  that  as  much  has  now  been  done  as  can 
safely  be  done  at  present,  still  in  the  long  future  that 
seems  to  lie  before  British  rule  in  India  the  equalization 
and  development  of  law  may  go  much  further  than 
we  can  foresee  to-day.  The  power  of  Britain  is  at  this 
moment  stable,  and  may  remain  so  if  she  continues 
to  hold  the  sea  and  does  not  provoke  discontent  by 
excessive  taxation. 

Two  courses  which  legal  development  may  follow 
are  conceivable.  One  is  that  all  those  departments  of 
law  whose  contents  are  not  determined  by  conditions 
peculiar  to  India  will  be  covered  by  further  codifying 
acts,  applicable  to  Europeans  and  natives  alike,  and  that 
therewith  the  process  of  equalization  and  assimilation 
will  stop  because  its  natural  limits  will  have  been 
reached.  The  other  is  that  the  process  will  continue 
until  the  law  of  the  stronger  and  more  advanced  race 
has  absorbed  that  of  the  natives  and  become  applicable 
to  the  whole  Empire.  N«  wa 

Which  of  these  two  things  will  happen  depends  upon 
the  future  of  the  native  religions,  and  especially  of 
1  linduism  and  of  Islam,  for  it  is  in  religion  that  the  legal 
customs  of  the  natives  have  their  roots.  Upon  this 
vast  and  dark  problem  it  may  seem  idle  to  speculate  ; 
nor  can  it  be  wholly  dissevered  from  a  consideration 


ROMAN  AND  ENGLISH  LAW  119 

of  the  possible  future  of  the  religious  beliefs  which 
now  hold  sway  among  Europeans.  Both  Islam  and 
Hinduism  are  professed  by  masses  of  human  beings  so 
huge,  so  tenacious  of  their  traditions,  so  apparently 
inaccessible  to  European  influences,  that  no  consider- 
able declension  of  either  faith  can  be  expected  within 
a  long  period  of  years.  Yet  experience,  so  far  as  it  is 
available,  goes  to  show  that  no  form  of  heathenism, 
not  even  an  ancient  and  in  some  directions  highly  culti- 
vated form  like  Hinduism,  does  ultimately  withstand 
the  solvent  power  of  European  science  and  thought. 
Even  now,  though  Hinduism  is  growing  every  day, 
at  the  expense  of  the  ruder  superstitions  among  the 
hill-folk,  it  is  losing  its  hold  on  the  educated  class, 
and  it  sees  every  day  members  of  its  lower  castes  pass 
over  to  Islam.  So  Islam  also,  deeply  rooted  as  it  may 
seem  to  be,  wanes  in  the  presence  of  Christianity,  and 
though  it  advances  in  Central  Africa,  declines  in  the 
Mediterranean  countries.  It  has  hitherto  declined  not 
by  the  conversion  of  its  members  to  other  faiths,  but  by 
the  diminution  of  the  Muslim  population ;  yet  one  must 
not  assume  that  when  the  Turkish  Sultanate  or  Khalifate 
has  vanished,  it  may  not  lose  much  of  its  present  hold 
upon  the  East.  Possibly  both  Hinduism  and  Islam 
may,  so  potent  are  the  new  forces  of  change  now  at 
work  in  India,  begin  within  a  century  or  two  to  show 
signs  of  approaching  dissolution.  Polygamy  may  by  that 
time  have  disappeared.  Other  peculiar  features  of  the 
law  of  family  and  inheritance  will  tend  to  follow,  though 
some  may  survive  through  the  attachment  to  habit  even 
when  their  original  religious  basis  has  been  forgotten. 

In  the  Arctic  seas,  a  ship  sometimes  lies  for  weeks 
together  firmly  bound  in  a  vast  ice-field.  The  sailor 
who  day  after  day  surveys  from  the  masthead  the  daz- 
zling expanse  sees  on  every  side  nothing  but  a  solid 
surface,  motionless  and  apparently  immoveable.  Yet 
all  the  while  this  ice-field  is  slowly  drifting  to  the 
south,  carrying  with  it  the  embedded  ship.     At  last, 


120  h'OUA  \    AND  i:\ai.isu   LAW 

when  a  warmer  region  has  been  reached  and  the  south 
wind  has  begun  to  blow,  that  which  overnight  was  a 
rigid  and  glittering  plain  is  in  the  light  of  dawn  a  tossing 
mass  of  ice-blocks,  each  swiftly  melting  into  the  sea, 
through  which  the  ship  finds  her  homeward  path.  So 
may  it  be  with  these  ancient  religions.  When  their  dis- 
solution comes,  it  may  come  with  unexpected  sudden- 
ness, for  the  causes  which  will  produce  it  will  have  been 
acting  simultaneously  and  silently  over  a  wide  area.  If 
the  English  are  then  still  the  lords  of  India,  there  will 
be  nothing  to  prevent  their  law  from  becoming  (with 
some  local  variations)  the  law  of  all  India.  Once  estab- 
lished and  familiar  to  the  people,  it  will  be  likely  to 
remain,  whatever  political  changes  may  befall,  for  noth- 
ing clings  to  the  soil  more  closely  than  a  body  of  civilized 
law  once  well  planted.  So  the  law  of  England  may 
become  the  permanent  heritage,  not  only  of  the  hundreds 
of  millions  who  will  before  the  time  we  are  imagining  be 
living  beyond  the  Atlantic,  but  of  those  hundreds  of 
millions  who  fill  the  fertile  land  between,  the  Straits  of 
Manaar  and  the  long  rampart  of  Himalayan  snows. 

We  embarked  on  this  inquiry  for  the  sake  of  ascer- 
taining what  light  the  experience  of  the  English  in 
India  throws  upon  the  general  question  of  the  relation 
of  the  European  nations  to  those  less  advanced  races 
over  whom  they  are  assuming  dominion,  and  all  of 
whom  will  before  long  own  some  European  master1. 

These  races  fall  into  two  classes,  those  which  do  and 
those  which  do  not  possess  a  tolerably  complete  system 
of  law.  Turks,  Persians,  Egyptians,  Moors,  and  Siamese 
belong  to  the  former  class;  all  other  non-European  races 
to  the  latter. 

As  to  the  latter  there  is  no  difficulty,  So  soon  as 
Kafirs  or  Mongols  or  Hausas  have  advanced  sufficiently 
to  need  a  regular  set  of  legal  rules,  they  will  (if  their 

1  Among  the  '  less  advanced  ra<  et '  one  must  not  now  include  the  Japan* 
one  may  include  the  Turks  and  the  Persians.    The  fate  of  China  still  bangs  in  the 
balance.    It  is  not  to  be  assumed  that  Bhe  will  be  rule. I,  though  she  must  come  to 
be  influenced,  and  probably  more  and  more  influenced,  by  Europeans. 


ROMAN  AND  ENGLISH  LAW  121 

European  masters  think  it  worth  while)  become  subject 
to  the  law  of  those  masters,  of  course  more  or  less 
differentiated  according  to  local  customs  or  local  needs. 
It  may  be  assumed  that  French  law  will  prevail  in 
Madagascar,  and  English  law  in  Uganda,  and  Russian 
law  in  the  valley  of  the  Amur. 

Where,  however,  as  is  the  case  in  the  Musulman  and 
perhaps  also  in  the  Buddhist  countries  belonging  to  the 
former  class,  a  legal  system  which,  though  imperfect, 
especially  on  the  commercial  side,  has  been  carefully 
worked  out  in  some  directions,  holds  the  field  and  rests 
upon  religion,  the  question  is  less  simple.  The  experi- 
ence of  the  English  in  India  suggests  that  European 
law  will  occupy  the  non-religious  parts  of  the  native 
systems,  and  will  tend  by  degrees  to  encroach  upon 
and  permeate  even  the  religious  parts,  though  so  long 
as  Islam  (or  Brahmanism)  maintains  its  sway  the  legal 
customs  and  rules  embedded  in  religion  will  survive. 
No  wise  ruler  would  seek  to  efface  them  so  far  as  they 
are  neither  cruel  nor  immoral.  It  is  only  these  ancient 
religions — Hinduism,  Buddhism,  and  especially  Islam — 
that  can  or  will  resist,  though  perhaps  only  for  a  time, 
and  certainly  only  partially,  the  rising  tide  of  European 
law. 

X.    Present   Position   of   Roman   and   English   Law 
in  the  World. 

European  law  means,  as  we  have  seen,  either  Roman 
law  or  English  law,  so  the  last  question  is :  Will  either, 
and  if  so  which,  of  these  great  rival  systems  prevail 
over  the  other  ? 

They  are  not  unequally  matched.  The  Roman  jurists, 
if  we  include  Russian  as  a  sort  of  modified  Roman  law, 
influence  at  present  a  larger  part  of  the  world's  popula- 
tion, but  Bracton  and  Coke  and  Mansfield  might  rejoice 
to  perceive  that  the  doctrines  which  they  expounded 
are  being  diffused  even  more  swiftly,  with  the  swift 


123  ROMAH   AUD   ENGLISH  LAW 

diffusion  of  the  English  tongue,  over  the  globe.  It 
is  an  interesting  question,  this  competitive  advance  of 
legal  systems,  and  one  which  would  have  engaged 
the  attention  of  historians  and  geographers,  were  not 
law  a  subject  which  lies  so  much  outside  the  thoughts 
of  the  lay  world  that  few  care  to  study  its  historical 
bearings.  It  furnishes  a  remarkable  instance  of  the 
tendency  of  strong  types  to  supplant  and  extinguish  N 
weak  ones  in  the  domain  of  social  development.  Thel'^l, 
world  is,  or  will  shortly  be,  practically  divided  between 
two  sets  of  legal  conceptions  of  rules,  and  two  only.' 
The  elder  had  its  birth  in  a  small  Italian  city,  and 
though  it  has  undergone  endless  changes  and  now 
appears  in  a  variety  of  forms,  it  retains  its  distinctive 
character,  and  all  these  forms  still  show  an  underlying 
unity.  The  younger  has  sprung  from  the  union  of  the 
rude  customs  of  a  group  of  Low  German  tribes  with 
rules  worked  out  by  the  subtle,  acute  and  eminently 
disputatious  intellect  of  the  Gallicized  Norsemen  who 
came  to  England  in  the  eleventh  century.  It  has  been 
much  affected  by  the  elder  system,  yet  it  has  retained 
its  distinctive  features  and  spirit,  a  spirit  specially  con- 
trasted with  that  of  the  imperial  law  in  everything  that 
pertains  to  the  rights  of  the  individual  and  the  means 
of  asserting  them.  And  it  has  communicated  something 
of  this  spirit  to  the  more  advanced  forms  of  the  Roman 
law  in  constitutional  countries. 

At  this  moment  the  law  whose  foundations  were  laid 
in  the  Roman  Forum  commands  a  wider  area  of  the 
earth's  surface,  and  determines  the  relations  of  a  larger 
mass  of  mankind.  But  that  which  looks  back  to  West- 
minster Hall  sees  its  subjects  increase  more  rapidly, 
through  the  growth  of  the  United  States  and  the  British 
Colonies,  and  has  a  prospect  of  ultimately  overspreading 
India  also.  Neither  is  likely  to  overpower  or  absorb 
the  other.  But  it  is  possible  that  they  may  draw  nearer, 
and  that  out  of  them  there  may  be  developed,  in  the 
course  of  ages,  a  system  of  rules  of  private  law  which 


ROMAN  AND  ENGLISH  LAW  123 

shall  be  practically  identical  as  regards  contracts  and 
property  and  civil  wrongs,  possibly  as  regards  offences 
also.  Already  the  commercial  law  of  all  civilized  coun- 
tries is  in  substance  the  same  everywhere,  that  is  to  say, 
it  guarantees  rights  and  provides  remedies  which  afford 
equivalent  securities  to  men  in  their  dealings  with  one 
another  and  bring  them  to  the  same  goal  by  slightly 
different  paths. 

The  more  any  department  of  law  lies  within  the 
domain  of  economic  interest,  the  more  do  the  rules  that 
belong  to  it  tend  to  become  the  same  in  all  countries, 
for  in  the  domain  of  economic  interest  Reason  and 
Science  have  full  play.  But  the  more  the  element  of 
human  emotion  enters  any  department  of  law,  as  for 
instance  that  which  deals  with  the  relations  of  husband 
and  wife,  or  of  parent  and  child,  or  that  which  defines 
the  freedom  of  the  individual  as  against  the  State,  the 
greater  becomes  the  probability  that  existingdivergences 
between  the  laws  of  different  countries  may  in  that  de- 
partment continue,  or  even  that  new  divergences  may 
appear. 

Still,  on  the  whole,  the  progress  of  the  world  is 
towards  uniformity  in  law,  and  towards  a  more  evident 
uniformity  than  is  discoverable  either  in  the  sphere  of 
religious  beliefs  or  in  that  of  political  institutions. 


Ill 


FLEXIBLE    AND     RIGID     CONSTI- 
TUTIONS J 

I.    The  Constitutions  of  Rome  and  England. 

Rome  and  England  are  the  two  States  whose  con- 
stitutions have  had  the  greatest  interest  for  the  world, 
and  have  exerted  the  greatest  influence  upon  it.  Out 
of  the  republic  on  the  Tiber,  a  city  with  a  rural  terri- 
tory round  it  no  bigger  than  Surrey  or  Rhode  Island, 
grew  a  World  Empire,  and  the  framework  of  that 
Empire  retained  till  its  fall  traces  of  the  institutions 
under  which  the  little  republic,  circled  and  threatened 
by  a  crowd  of  hostile  States,  had  risen  to  show  her- 
self the  strongest  of  them  all.  In  England  a  monarchy, 
first  tribal  and  then  feudal,  developed  from  very  small 
beginnings  into  a  second  World  Empire  of  a  wholly 
different  type,  while  at  the  same  time  the  ancient  form 
of  government,  through  a  series  of  struggles  and  efforts, 
guided  by  an  only  half-conscions  purpose,  slowly  de- 
veloped itself  into  a  system  monarchical  only  in  name. 
That  system  became  in  the  eighteenth  century  the  start- 
ing-point for  all  modern  political  philosophy  -,  and  in  the 
nineteenth  the  model  for  nearly  all  the  schemes  of  free 

1  This  Essay  was  delivered,  in  the  form  of  two  lectures,  in  iSS.(,  and  tin-  name. 
Flexible  and  Rigid  were  then  suggested  for  tin-  two  types  of  Constitution  here 
described.  It  has  been  enlarged  and  revised  and  brought  up  to  date,  but  the  sub- 
stance remains  the  same. 

2  The  interest  which  the  English  Constitution  excited  in  Montesquieu  may  be 
compared  with  that  which  the  Roman  excited  in  Polybius. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  125 

representative  polity  that  have  arisen  in  the  Old  World 
as  well  as  for  many  in  the  newer  countries. 

It  is,  however,  not  merely  the  range  of  their  influence, 
nor  merely  the  fact  that,  as  the  Roman  Constitution 
worked  upon  the  whole  of  the  ancient,  so  the  English 
Constitution  has  worked  upon  the  whole  of  the  modern 
world,  that  makes  these  two  systems  deserve  constant 
study.  Constitutions  are  the  expression  of  national 
character,  as  they  in  their  turn  mould  the  character  of 
those  who  use  them ;  and  the  same  causes  which  made 
both  peoples  great  have  made  their  political  institutions 
also  strong  and  rich,  specially  full  of  instruction  for  all 
nations  in  all  times.  There  were  in  the  fifth  century 
b.  c.  hundreds  of  commonwealths  in  the  Mediterranean 
countries  with  republican  frames  of  government,  many 
of  which  bore  a  general  resemblance  to  that  of  Rome. 
There  were  in  the  fourteenth  century  a.  d.  several  mon- 
archies in  Europe  similar  in  their  constitutional  outlines 
to  that  of  England,  and  with  what  seemed  an  equal  pro- 
mise of  rich  and  free  development.  Of  the  former,  Rome 
alone  survived,  destroying  or  absorbing  all  the  rest. 
Of  the  latter,  that  of  England  is  the  only  one  which  had 
at  the  end  of  the  eighteenth  century  grown  into  a  system 
at  once  broad-based  and  strong,  a  system  which  secured 
both  public  order  and  the  freedom  of  the  individual  citi- 
zen, and  in  which  the  people  were  able  to  make  their 
voice  heard  and  to  influence  the  march  of  national  policy. 
All  the  others  had  either  degenerated  into  despotisms  or 
remained  comparatively  crude  and  undeveloped.  Thus 
when,  after  the  flood  of  Napoleonic  conquest  had  sub- 
sided, the  peoples  of  the  European  continent  began  to 
essay  the  establishment  of  free  constitutions,  they  found 
in  that  of  England  the  model  fittest  to  be  followed,  and 
sought  to  adapt  its  principles  to  their  own  several 
conditions. 

England,  moreover,  has  been  the  parent  of  free 
governments  in  a  further  sense.  Though  she  has  not, 
like  Rome,  stretched  her  system  of  government  till  it 


126  FLEXIBLE  AND   RIU1J)   CONSTITUTIONS 

embraced  the  world,  she  has  reproduced  it  in  those 
parts  of  her  transoceanic  dominions  where  her  children 
have  been  able  to  form  self-governing  communities. 
Reduced  copies  of  the  British  Constitution  have  been 
created  in  seventeen  self-governing  colonies.  Seven  of 
these  have  in  North  America  been  united  in  a  Federa- 
tion whose  frame  of  government  is  built  on  British 
lines.  Six  others,  in  Australia,  have  been  similarly 
grouped  in  another  Federal  Government  of  a  not  less 
distinctively  British  type.  And  an  independent  Republic, 
far  vaster  in  population  than  all  these  colonies  put  to- 
gether, has,  less  closely,  but  yet  in  the  main  and  essential 
points,  reproduced  the  principles,  although  not  the  form, 
of  the  institutions  of  the  motherland.  It  is,  therefore, 
to  Rome  and  to  England  that  the  eye  of  the  student  of 
political  constitutions  will  most  often  turn.  They  repre- 
sent the  most  remarkable  developments  of  ordered 
political  life  for  the  ancient  and  for  the  modern  world 
respectively.  And  whoever  attempts  to  classify  Consti- 
tutions and  to  note  the  distinctive  features  of  the  princi- 
pal types  they  present,  will  find  that  it  is  from  Rome  and 
from  England  that  illustrations  can  most  frequently  and 
most  profitably  be  drawn1. 

II.    The  Traditional  Classification  of 
Constitutions. 

The  old-fashioned  classification  of  Constitutions  which 
has  come  down  to  our  own  times  is  based  on  the 
distinction  of  Written  and  Unwritten  Law,  itself  an  ill- 
expressed  and  rather  confusing  distinction,  because  ius 
nan  scriptum  is  intended  to  denote  customs:  and  when 
customs  have  been  recorded  in  writing,  they  can  hardly 
continue  to  be  called  unwritten.  This  classification 
places  in  the  category  of  Written  Constitutions  those 
which  are  expressly  set  forth  in  a  specially  important 

1  As  to  the  countries  or  peoples  in  which  Constitutions  in  the  proper  sense  can 
be  said  to  exist,  see  Note  at  the  end  of  this  Essay. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  127 

document  or  documents,  and  in  the  category  of  Unwrit- 
ten those  which  began,  not  in  formal  agreements,  but  in 
usage,  a  usage  which  lives  in  men's  recollections,  and 
which,  even  when  it  has  been  to  a  large  extent  defined, 
and  secured  against  error,  by  being  committed  to  writ- 
ing, is  recorded  as  embodying  that  which  men  have  ob- 
served, and  are  deemed  likely  to  continue  to  observe, 
not  as  that  to  which  they  have  bound  themselves  formally 
by  a  law. 

These  terms  are,  however,  not  happy  terms,  although 
the  distinction  they  aim  at  expressing  is  a  real  distinction. 
The  line  which  they  attempt  to  draw  between  the  two 
classes  of  Constitutions  is  not  a  clear  or  sharp  line, 
because  in  all  Written  Constitutions  there  is  and  must 
be,  as  we  shall  presently  see,  an  element  of  unwritten 
usage,  while  in  the  so-called  Unwritten  ones  the  tendency 
to  treat  the  written  record  of  custom  or  precedent  as 
practically  binding  is  strong,  and  makes  that  record 
almost  equivalent  to  a  formally  enacted  law,  not  to  add 
that  Unwritten  Constitutions,  though  they  began  in 
custom,  always  include  some  statutes.  Moreover,  these 
names,  while  they  dwell  on  a  superficial  distinction, 
ignore  a  more  essential  one  to  be  presently  mentioned. 
Let  us  therefore  try  to  find  a  better  classification. 

If  we  survey  Constitutions  generally,  in  the  past  as 
well  as  in  the  present,  we  find  them  conforming  to  one 
or  other  of  two  leading  types.  Some  are  natural  growths, 
unsymmetrical  both  in  their  form  and  in  their  contents. 
They  consist  of  a  variety  of  specific  enactments  or  agree- 
ments of  different  dates,  possibly  proceeding  from  dif- 
ferent sources,  intermixed  with  customary  rules  which 
rest  only  on  tradition  or  precedent,  but  are  deemed  of 
practically  equal  authority.  Other  Constitutions  are 
works  of  conscious  art,  that  is  to  say,  they  are  the  result 
of  a  deliberate  effort  on  the  part  of  the  State  to  lay  down 
once  for  all  a  body  of  coherent  provisions  under  which  its 
government  shall  be  established  and  conducted.  Such 
Constitutions  are  usually  comprised  in  one  instrument — 


12S  FLEXIBLE  AXD  liWW   U0XST1TUTI0NS 

possibly,  however,  in  more  than  one — an  instrument 
solemnly  enacted  whose  form  and  title  distinguish  it 
from  ordinary  laws.  We  may  provisionally  call  these 
two  types  the  Old  and  the  New,  because  all  ancient  and 
mediaeval  as  well  as  some  few  recent  Constitutions  are 
of  the  former  kind,  while  most  modern  ones  belong  to 
the  latter.  The  distinction  corresponds  roughly  to  that 
drawn,  in  England  and  America,  between  common  law 
and  statute  law,  or  to  the  Roman  distinction  between 
ins  and  lev,  so  that  we  might  describe  the  types  as  Com- 
mon Law  Constitutions  and  Statutory  Constitutions  re- 
spectively. Yet  the  line  of  demarcation  is  not  always  a 
plain  one.  In  countries  with  constitutions  of  the  Com- 
mon Law  type,  statutes  are  frequently  passed,  declaring 
or  modifying  or  abolishing  antecedent  usage,  which  su- 
persede and  replace  parts,  possibly  large  parts,  of  the 
common  law  maxims,  so  that  at  last  most  of  the  leading 
rules  can  be  found  in  a  few  great  statutes.  On  the  other 
hand,  the  Statutory  Constitutions  become  developed  by 
interpretation  and  fringed  with  decisions  and  enlarged 
or  warped  by  custom,  so  that  after  a  time  the  letter  of 
their  text  no  longer  conveys  their  full  effect.  It  is, 
therefore,  desirable  to  have  some  more  definite  and 
characteristic  test  or  criterion  whereby  to  mark  off  the 
two  types  which  have  been  just  described  in  general 
terms. 

III.    A  Proposed  New  Classification  of 
Constitutions. 

Such  a  criterion  may  be  found  in  the  relation  which 
each  Constitution  bears  to  the  ordinary  laws  of  the  State, 
and  to  the  ordinary  authority  which  enacts  those  laws. 
Some  constitutions,  including  all  that  belong  to  the 
older  or  Common  Law  type,  are  on  the  level  of  the 
other  laws  of  the  country,  whether  those  laws  exist  in 
the  form  of  statutes  only,  or  also  in  the  form  of  recorded 
decisions  defining  and  confirming  a  custom.     Such  con- 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  129 

stitutions  proceed  from  the  same  authorities  which  make 
the  ordinary  laws ;  and  they  are  promulgated  or  repealed 
in  the  same  way  as  ordinary  laws.    In  such  cases  the  term 

/*  Constitution  '  denotes  nothing  more  than  such  and  so 
many  of  the  statutes  and  customs  of  the  country  as  deter- 

\  mine  the  form  and  arrangements  of  its  political  system. 
And  (as  will  presently  appear)  it  is  often  difficult  to  say 
of  any  particular  law  whether  it  is  or  is  not  a  part  of  the 
political  Constitution. 

Other  constitutions,  most  of  them  belonging  to  the 
newer  or  Statutory  class,  stand  above  the  other  laws  of 
the  country  which  they  regulate.  The  instrument  (or 
instruments)  in  which  such  a  constitution  is  embodied 
proceeds  from  a  source  different  from  that  whence  spring 
the  other  laws,  is  repealable  in  a  different  way,  exerts  a 
superior  force.  It  is  enacted,  not  by  the  ordinary  legis- 
lative authority,  but  by  some  higher  or  specially  em- 
powered person  or  body.  If  it  is  susceptible  of  change, 
it  can  be  changed  only  by  that  authority  or  by  that  special 
person  or  body.  When  any  of  its  provisions  conflict  with 
a  provision  of  the  ordinary  law,  it  prevails,  and  the  ordi- 
nary law  must  give  way.  These  are  features,  partly 
political,  partly  legal,  which  mark  off  the  two  types  of 
Constitution  from  one  another;  and  although  it  will 
appear  that  in  some  few  cases  the  question  to  which 
type  the  Constitution  of  a  particular  State  belongs  may 
be  a  nice  one,  still  the  general  legal  criteria  to  be  applied 
are  clear  and  definite.  In  a  State  possessing  a  constitu- 
tion of  the  former — the  older — type,  all  laws  (excluding 
of  course  by-laws,  municipal  regulations,  and  so  forth) 
are  of  the  same  rank  and  exert  the  same  force.  There 
is,  moreover,  only  one  legislative  authority  competent 
to  pass  laws  in  all  cases  and  for  all  purposes.  But  in  a 
State  whose  Constitution  belongs  to  the  latter — the 
newer — type,  there  are  two  kinds  of  laws,  one  kind  higher 
than  the  other,  and  more  universally  potent ;  and  there 
are  likewise  two  legislative  authorities,  one  superior  and 
capable  of  legislating  for  all  purposes  whatsoever,  the 
9 


130  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

other  inferior  and  capable  of  legislating  only  so  far  as  the 
superior  authority  has  given  it  the  right  and  function  to 
do  so. 

The  difference  of  these  two  types  is  best  explained 
by  illustrative  instances.  At  Rome  in  the  second  cen- 
tury b.  c.  there  was  but  one  kind  of  enactment.  All 
leges  passed  by  the  general  assembly  (whether  comitia 
ccnturiata  or  comitia  tributa)  were  of  the  same  gene- 
rality and  the  same  force.  There  was  but  one  legis- 
lative authority,  the  people  voting  in  the  comitia.  So  in 
England,  during  the  last  few  centuries,  there  has  been 
but  one  direct  legislative  authority,  viz.  Parliament, 
which  is  supreme,  and  all  whose  acts  bind  every  citizen 
everywhere.  Accordingly  in  England  the  laws  called 
constitutional  differ  only  in  respect  of  their  subject- 
matter  from  other  laws,  but  are  of  no  higher  order. 
Each  of  such  laws,  though  we  call  them  in  their  totality 
'  the  British  Constitution,'  is  alterable  by  the  ordinary 
legislative  authority  at  any  moment,  just  like  other  laws. 
Between  an  Act  for  making  a  railway  from  Manchester 
to  Liverpool  and  an  Act  extending  the  electoral  suffrage 
to  all  householders  or  disestablishing  the  Protestant 
Episcopal  Church  in  Ireland  there  is  no  difference  what- 
ever in  point  of  form  or  in  degree  of  authority.  In 
Switzerland,  however,  and  in  Erance  the  case  is  different. 
The  Constitution  of  the  Swiss  Confederation  is  a  docu- 
ment which  was  enacted  by  the  people,  and  any  amend- 
ment of  which  needs  to  be  similarly  enacted  by  them, 
whereas  ordinary  laws  are  passed  by  the  Federal  legisla- 
ture of  two  Houses1.  The  present  Constitution  of  the 
French  Republic  was  enacted  by  the  two  Chambers  sit- 
ting together  as  a  Constituent  Assembly,  and  can  be 
amended  only  by  the  Chambers  sitting  together  in  that 
capacity,  after  each  Chamber  has  separately  resolved  that 
revision  is  needed,  whereas  ordinary  laws  are  passed  by 

'  It  is  unnecessary  for  the  present  purpose  to  call  attention  to  the  complication 
introduced  in  Switzerland  by  the  application  of  the  Referendum  plan  to  ordinary 
laws. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  131 

the  two  Chambers  sitting  separately.  Thus  both  in 
Switzerland  and  in  France  there  is  a  distinction  in  the 
enacting  authority,  and  therewith  also  a  distinction  in 
the  quality  and  force  of  the  laws  enacted,  the  law  which  is 
called  the  Constitution  being  entirely  superior  to  the 
other  laws  which  are  passed  by  the  legislature  in  the 
ordinary  every-day  course  of  its  action. 

What  in  the  case  of  each  State  of  the  latter  or  newer 
type  may  be  the  higher  (and  indeed  supreme)  authority 
which  is  alone  competent  to  enact  a  Constitution  depends 
upon  the  provisions  of  each  particular  system.  It  may  be 
the  whole  people,  voting  by  what  is  sometimes,  though 
not  very  happily,  called  a  plebiscite.  It  may  be  a  body 
specially  elected  for  the  purpose,  which  dissolves  when 
its  work  has  been  completed.  It  may  be  certain  local 
bodies,  each  voting  separately  on  the  same  instrument 
submitted  to  them.  It  may  be,  as  in  the  case  just 
mentioned  of  France,  the  ordinary  legislature  sitting  in 
a  peculiar  way,  or  acting  by  a  prescribed  majority,  or 
rendering  several  successive  votes  to  the  same  effect 
at  prescribed  intervals  of  time.  These  are  matters  of 
detail.  The  essential  point  is  that  in  States  possessing 
Constitutions  of  the  newer  type  that  paramount  or  fun- 
damental law  which  is  called  the  Constitution  takes 
rank  above  the  ordinary  laws,  and  cannot  be  changed 
by  the  ordinary  legislative  authority. 

I  have  sought  in  many  quarters  for  names,  necessarily 
metaphorical  names,  suitable  to  describe  these  two  types 
of  Constitution.  They  might  be  called  Moving  and 
Stationary,  because  those  of  the  older  kind  are  virtually 
never  at  rest,  but  are  always  undergoing  some  sort  of 
change,  however  slight,  in  the  course  of  ordinary  legis- 
lation, while  those  of  the  newer  type  abide  fixed  and 
stable  in  their  place.  Or  they  might  be  described,  the 
former  as  Fluid,  and  the  latter  as  SoJ.id  or  Crystallized. 
When  a  man  desires  to  change  *  the  composition  of  a 
liquid,  he  pours  in  some  other  liquid  or  dissolves  a  solid 

ll.  e.  to  change  mechanically,  not  necessarily  chemically. 


132  FLEXIBLE  AND  MOID  CONSTITUTIONS 

in  the  liquid,  and  shakes  the  mixture.  But  he  who  wishes 
to  alter  the  composition  of  a  solid  must  first  dissolve 
it  or  fuse  it,  and  then,  having  got  it  into  a  liquid  or  gase- 
ous state,  must  mix  in  or  extract  (as  the  case  may  be)  the 
other  substance.  The  analogy  between  these  two  pro- 
cesses and  those  whereby  a  Constitution  of  the  older  and 
one  of  the  newer  type  are  respectively  changed  might 
justify  these  names.  But  there  is  another  and  simpler 
metaphor,  which,  though  not  quite  perfect,  seems  on 
the  whole  preferable.  Constitutions  of  the  older  type 
may  be  called/ Flexible,  because  they  have  elasticity, 
because  they  can  be  bent  and  altered  in  form  while  re- 
taining their  main  features.  Constitutions  of  the  newer 
kind  cannot,  because  their  lines  are  hard  and  fixed. 
They  may  therefore  receive  the  name  of  Rigid  Consti- 
tutions :  and  by  these  two  names  I  propose  that  we 
shall  call  them  for  the  purposes  of  this  inquiry.  If 
the  characteristics  of  the  two  types  have  not  been  made 
sufficiently  clear  by  what  has  been  already  said,  they 
will  probably  become  clear  in  the  more  detailed  ex- 
amination of  them,  to  which  we  may  now  proceed. 

I  begin  with  Flexible  Constitutions,  not  only  because 
they  are  more  familiar  to  students  of  Roman  history 
and  to  Englishmen,  but  also  because  they  are  anterior 
in  date.  They  are  indeed  the  only  constitutions  which 
the  ancient  world  possessed,  for  although,  in  the  absence 
of  Aristotle's  famous  treatise  On  Politics,  we  know  com- 
paratively little  about  most  of  the  constitutions  even  of 
the  more  famous  Greek  cities  (except  Athens),  and  prac- 
tically nothing  about  any  others,  save  those  of  Rome 
and  Carthage,  there  are  reasons,  to  be  given  presently, 
why  we  may  safely  assume  that  all  of  them  belonged 
to  the  Flexible  type.  But  in  the  modern  world  they 
have  become  rare.  Excluding  despotically  governed 
countries,  such  as  Russia,  Turkey,  and  Montenegro, 
there  are  now  only  three  in  Europe,  those  of  the  United 
Kingdom,  of  Hungary — an  ancient  and  very  interesting 
Constitution,  presenting  remarkable  analogies  to  that 


FLEXIBLE  AM)  RIGID   COXSPlTUTIONS  133 

of  England — and  of  Italy,  whose  constitution,  though 
originally  set  forth  in  one  document,  has  been  so  changed 
by  legislation  as  to  seem  now  properly  referable  to  the 
Flexible  type.  Elsewhere  than  in  Europe,  all  Consti- 
tutions would  appear  to  be  Rigid1. 

But  a  preliminary  objection  deserves  to  be  first  con- 
sidered. Can  we  properly  talk  of  a  Constitution  at  all 
in  States  which,  like  Rome  and  England,  draw  no  formal 
and  technical  distinction  between  laws  of  different  kinds  ? 
Since  there  was  at  Rome  and  is  in  England  but  one  legis- 
lative authority,  and  all  its  statutes  are  of  equal  force, 
how  distinguish  those  which  relate  to  the  general  frame 
of  government  from  those  which  embody  the  minor 
details  of  administration?  The  great  Reform  Act  of 
a.  d.  1832,  for  instance — and  the  same  remark  applies 
to  the  parliamentary  reform  Acts  of  1867  and  1884 — 
was  clearly  a  constitutional  statute.  But  it  contained 
minor  provisions  which  no  one  could  call  fundamental, 
and  some  of  which  were  soon  changed  by  other  statutes 
which  would  scarcely  be  described  as  constitutional. 
There  are  many  statutes  of  which,  as  of  the  Municipal 
Reform  Act  of  1834  (and  I  may  add  as  of  the  Local 
Government  Acts  of  1888  and  1894),  it  would  be  hard 
to  say  whether  they  are  or  are  not  constitutional  statutes, 
and  there  are  statutes  which  would  not  be  termed  consti- 
tutional (such  as  the  Scottish  Universities  Act  of  1852), 
which  have  in  fact  modified  such  a  momentous  consti- 
tutional document  as  the  Act  of  Union  with  Scotland 
(5  Anne,  c.  6,  art.  xxv). 

Technically,  therefore,  we  cannot  draw  a  distinction 
between  constitutional  and  other  laws.  There  was  in 
strictness  no  Roman  Constitution.  There  is  no  British 
Constitution.  That  is  to  say,  there  are  no  laws  which 
can  be  definitely  marked  off  as  Fundamental  Laws,  de- 
fining and  distributing  the  powers  of  government,  the 
mode  of  creating  public  authorities,  the  rights  and  immu- 

1  Except  that  of  the  South  African  Republic  (Transvaal).  The  cases  of  the 
British  self-governing  colonies  will  be  presently  referred  to. 


134  FLEXIBLE  AND   RIGID   CONSTITUTIONS 

nities  of  the  citizen.  That  which  we  call  the  Constitu- 
tion of  the  Roman  State,  that  which  we  now  call  the 
Constitution  of  the  United  Kingdom,  is  a  mass  of  prece- 
dents, carried  in  men's  memories  or  recorded  in  writing, 
of  dicta  of  lawyers  or  statesmen,  of  customs,  usages,  un- 
derstandings and  beliefs  bearing  upon  the  methods  of 
government,  together  with  a  certain  number  of  statutes, 
some  of  them  containing  matters  of  petty  detail,  others 
relating  to  private  just  as  much  as  to  public  law,  nearly 
all  of  them  presupposing  and  mixed  up  with  precedents 
and  customs,  and  all  of  them  covered  with  a  parasitic 
growth  of  legal  decisions  and  political  habits,  apart  from 
which  the  statutes  would  be  almost  unworkable,  or  at 
any  rate  quite  different  in  their  working  from  what  they 
really  are.  The  most  skilful  classifier  could  not  draw 
up  a  list  that  would  bear  criticism  of  Roman  or  of  British 
statutes  embodying  the  Constitution  of  either  State : 
and  even  if  such  a  list  were  prepared,  the  statutes  so 
classified  would  fail  to  contain  some  cardinal  doctrines 
and  rules.  Such  a  list,  for  instance,  of  British  statutes 
would  contain  nothing  about  the  Cabinet,  and  very  little 
about  the  relations  of  the  House  of  Commons  to  the 
House  of  Lords.  On  such  subjects  as  the  control  of  the 
House  of  Commons  over  foreign  affairs,  the  obligation  of 
the  Crown  to  take,  or  the  possible  right  of  the  Crown  in 
certain  cases  to  overrule,  the  advice  of  its  ministers,  no 
light  would  be  thrown.  Yet  the  statutes  form  the  clearest 
and  most  manageable  part  of  the  materials  which  make 
up  the  British  Constitution.  Those  other  materials  which 
have  been  referred  to  are  by  their  very  nature  vague 
and  indeterminate,  unsusceptible  of  classification,  and  in 
many  instances  incapable  of  being  set  forth  in  definite 
rules  *.  A  certain  part  of  them  is  already,  or  is  on  the 
way  to  become,  obsolete.  Another  part  is  matter  of 
controversy  between  different  schools  of  jurists  or  his- 
torians.   The  same  thing  was  true  of  Rome,  for  at  Rome 

1  This  point  li.is  been  broupht  out  with  admirable  force  in  Mr.  Diccy's  Law  oj 
the  Constitution. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  135 

it  would  seem  that  no  statute  denned  the  power  of  the 
consuls,  nor  their  relation  to  the  Senate,  nor  set  limits 
to  the  quasi-legislative  authority  of  that  great  magistrate 
the  Praetor.  So  far  from  being  clearly  ascertained  were 
the  powers  of  the  Senate,  that  in  Cicero's  time  it  was 
matter  of  constitutional  debate  whether  its  decrees  had 
or  had  not  the  full  force  of  law  x ;  and  men  took  one  view 
or  the  other  according  to  their  political  proclivities,  just 
as  in  England  men  at  one  time  differed  regarding  the 
right  of  the  House  of  Lords  to  deal  with  money  bills. 

These  facts  are  of  course  obvious  enough  to-day  to 
every  English  lawyer,  and  indeed  to  those  laymen  who 
have  some  tincture  of  historical  or  legal  knowledge. 
It  is  otherwise  with  the  general  public.  To  them  the 
word  Constitution  seems  to  represent  something  defi- 
nite and  positive.  Much  of  the  current  talk  about  the 
danger  of  altering  the  British  Constitution  -  seems  to 
spring  from  the  notion  that  the  name  represents  a  con- 
crete thing,  an  ascertainable  and  positive  definite  body 
of  rules  laid  down  in  black  and  white.  The  Romans  had 
no  single  word  to  convey  what  we  mean  by  '  Constitu- 
tion.' Even  in  the  last  days  of  the  Republic  Cicero 
had  to  use  such  phrases  as  forma,  or  ratio,  or  genus  rci 
publicae,  or  leges  et  institnta;  and  what  we  call  '  consti- 
tutional law '  appears  in  the  jurists  of  the  Empire  as 
ins  quod  ad  station  rci  Romanac  special 3. 

The  objection,  however,  which  we  have  been  con- 
sidering, goes  only  to  misconceptions  that  may  arise 
from  the  word  '  Constitution,'  not  to  the  use  of  the  word 
itself,  for  some  such  word  is  indispensable.  The  thing 
exists,  and  there  must  be  a  name  to  describe  it.  A  thing 
is  not  the  less  real  because  its  limits  cannot  be  sharply 
defined.  A  hill  is  a  hill  and  a  plain  a  plain,  though  you 
cannot  fix  the  point  where  the  hill  subsides  into  the  plain. 

1  See  as  to  this,  Essay  XIV,  p.  >i6. 

a  I  have  allowed  these  lines  to  remain,  though  they  were  more  applicable  in 
1884  than  they  are  in  1900,  when  so  many  changes  have  been  effected  that  argt> 
merits  about  the  danger  of  changing  the  Constitution  are  less  frequently  heard. 

8  Ulpian  in  Digest,  i.  1,  2. 


136  II. i:\HiIJJ  AND  1UU1D   CONSTITUTIONS 

The  aggregate  of  the  laws  and  customs  through  and 
under  w  Inch  the  public  life  of  a  State  goes  on  may  fitly  be 
called  its  Constitution ;  and  even  the  still  vaguer  phrases, 
1  Spirit  of  the  Constitution/  '  Principles  of  the  Constitu- 
tion,' may  properly  be  used,  since  they  too  describe  a 
general  quality  or  tendency  pervading  the  whole  mass 
of  laws  and  customs  that  rule  a  State  which  gives  to  this 
mass  a  character  differing  from  that  of  the  Constitution 
of  any  other  State  ;  just  as  each  great  nation  has  what  we 
call  a  National  Character,  though  this  character  can  be 
more  easily  recognized  than  defined. 


IV.    The  Origin  ok  Flexible  Constitutions. 

Now  let  us  return  to  consider  the  history  and  the 
attributes  of  Flexible  Constitutions.  We  have  seen 
that  they  are  older  than  those  of  the  Rigid  type.  It 
may  be  thought  that  this  is  so  because  they  are  more 
compatible  with  a  rude  condition  of  society,  and  be- 
cause springing  out  of  custom,  always  the  first  source 
of  law,  they  are  the  simplest  and  most  obvious  form 
which  regular  political  society  can  take.  This  is  true, 
but  does  not  fully  explain  the  phenomena. 

A  Constitution  properly  so  called  is  a  frame  of  political 
society  organized  through  and  by  law,  that  is  to  say,  one 
in  which  law  has  established  permanent  institutions  with 
recognized  functions  and  definite  rights.  Now  such 
forms  of  organized  political  society  appear  first  in  small 
communities,  whether  Urban,  like  the  City  States  of 
Greece,  or  Rural,  like  those  of  early  England  or  mediae- 
val Switzerland.  Wherever  in  the  earlier  stages  of  civili- 
zation we  find  large  communities,  like  Egypt,  Assyria, 
Peru,  Russia  in  the  sixteenth  century,  we  find  that  a 
tribal  organization  has  passed  into  a  despotism1,  appa- 

1  I  use  the  term  '  despotism  '  for  convenience,  but  of  course  no  monarchy  is  ab- 
solutely despotic,  and  least  of  all  perhaps  in  the  ruder  apes;  for  monarchs  are 
always  amenable  to  public  opinion,  and  most  so  when  they  arc  the  leaders  of  a 
tribe  or  people  in  arms.    The  real  distinction  is  between  a  government  checked 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  137 

rently  without  passing  through  the  intermediate  stage 
of  a  more  or  less  restricted  monarchy.  Now  in  a  small 
area  men  usually  organize  themselves  in  a  regular  com- 
munity by  vesting  legal  authority  in  a  mass  meeting  of 
the  citizens.  The  Folk  Mot  of  our  Teutonic  ances- 
tors, like  the  still  surviving  Landesgemeinde  of  Uri  or 
Appenzell,  represents  in  a  rural  community  what  the 
ayopd  represents  in  Homeric  Greece,  what  the  iKKXrjaia 
represents  in  the  later  Greek  cities,  and  what  the  comitia 
represent  at  Rome ;  I  might  add,  what  (in  a  more  rudi- 
mentary form)  the  popular  meeting  represents  to-day  in 
Albania  and  what  the  similar  meeting  called  a  Pitso  re- 
presents among  the  Basuto  and  Bechuana  Kafirs.  Such 
meetings,  like  the  New  England  Town  Meeting,  are 
Primary,  not  Representative.  They  consist  of  all  the 
freemen  within  the  community,  though,  in  their  earlier 
stage,  it  is  in  practice  the  leading  men  who  determine 
the  action  of  the  whole  assembly.  They  make  such  laws 
as  there  are.  Being  not  only  the  supreme,  but  the  only 
legislative  authority,  they  can  at  any  moment  change  the 
laws  they  deem  fundamental,  if  there  are  any  such  laws, 
for  the  more  backward  races  remain  in  the  stage  of  mere 
custom,  and  do  not  reach  the  conception  of  a  funda- 
mental law.  Whether  the  system  of  their  government  is 
formally  embodied  in  one  group  of  specially  important 
laws,  or,  as  more  often  happens,  is  left  to  be  collected 
from  a  number  of  enactments  connected  and  supple- 
mented by  usages,  that  system  remains  on  a  level  with 
all  the  other  laws  and  usages,  because  it  emanates 
from  the  same  source,  viz.  the  governing  primary 
assembly.  It  is  not  till  the  growth  of  some  scheme  of 
representation  has  made  familiar  the  distinction  between 
the  authority  of  the  people  themselves  and  that  of  their 

by  religious  sentiment  consecrating  ancient  usage  and  by  the  fear  of  insurrection, 
and  a  government  checked  by  well-established  institutions  and  legal  rules.  As  to 
Russia,  it  may  be  noted  that  though  she  has  no  Constitution  in  the  proper  sense, 
there  are  said  to  exist  three  Fundamental  Laws  of  the  Empire — that  declaring 
the  sovereign's  autocratic  power,  that  requiring  him  (or  her)  to  be  a  member  of 
the  Orthodox  Church  of  the  East,  and  that  fixing  the  rule  of  succession  to  the 
throne. 


138  FLEXIBLE  AND   RIGID   CONSTITUTIONS 

representatives  that  truly  Rigid  Constitutions  appear, 
for  it  is  not  till  then  that  a  method  suggests  itself  of 
enacting  a  kind  of  law  which  shall  be  superior  to  that 
which  the  ordinary  legislative  body  creates.  Accordingly 
the  Primary  Assembly,  whether  in  ancient  Greece  and 
Italy  or  in  mediaeval  Europe,  works  for  some  time,  and 
may  create  by  its  constant  action  what  is  practically 
a  Constitution  (i.e.  a  set  of  established  rules  embodying 
and  directing  the  practice  of  government),  before  the 
idea  of  a  regular  political  Constitution  emerges.  That 
idea  comes  into  being  when  in  the  progress  of  political 
thought  and  of  jurisprudence  men  begin  to  distinguish 
between  laws  and  customs  which  relate  to  the  structure 
of  the  State  and  the  management  of  its  affairs  and 
those  which  relate  to  other  matters,  such  as  the  civil 
rights  of  individuals  ;  and  when  they  also  distinguish 
between  rules  and  usages  which  are  fixed  and  settled, 
because  generally  observed  and  regularly  applied  to  re- 
current facts,  and  the  particular  decisions  taken  in  parti- 
cular cases.  In  this  sense  the  Romans  may  have  begun 
to  feel  they  had  a  Constitution  before  they  had  gone  far 
in  the  conquest  of  Italy.  Our  English  ancestors  reached 
the  same  consciousness  in  the  fourteenth  century,  when 
much  stress  began  to  be  laid  upon  political  precedents, 
and  Parliament,  by  this  time  a  Representative  body,  and 
thereby  entitled  to  speak  for  the  nation,  had  definitely 
established  its  rights  as  against  the  Crown  l.  The  Con- 
firmation of  the  Charters  together  with  the  statute  De 
Tallagio  Non  Concedendo  of  A.  d.  1297  is  often  taken  as 
marking  the  first  form  of  the  plainly  settled  English  Con- 
stitution, but  perhaps  the  successful  resistance  of  Parlia- 
ment to  King  Edward  the  Third  sixty  years  later  is  a 
better  point  to  choose.     Anyhow  the  language  of  Chief 

1  The  history  of  England  illustrates  what  is  here  said  regarding  small  and 
large  communities.  The  Folk  Mot  of  the  West  Saxons  when  it  passed  into  the 
Magnum  Concilium  of  all  England,  though  it  remained  in  theory  a  Primary  As- 
sembly, was  practically  no  lon^<  r  .1  milling  of  all  freemen.  It  could  not  have 
continued  to  embody  and  safeguard  the  constitutional  rights  of  the  people  but  for 
the  later  invention  of  Representation,  which  made  it  again  a  virtually  Popular 
though  no  longer  a  Primary  Assembly. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  139 

Justice  Fortescue  (under  Henry  the  Sixth)  shows  how 
clearly  drawn  the  main  lines  of  the  Constitution  had  be- 
come in  his  time.  When  this  stage  has  been  reached, 
efforts  are  sometimes  made  to  give  to  these  constitu- 
tional rules,  or  to  certain  among  them,  an  exceptional 
degree  of  force  and  permanence.  Such  rules  may  be 
embodied  in  a  document  of  special  sanctity ;  or  they  may 
be  protected  by  oaths.  But  the  creation  of  a  truly  Rigid 
Constitution  comes  later,  when  some  system  of  repre- 
sentation has  appeared.  I  shall  presently  return  to  ex- 
amine the  causes  which  produce  it. 

V.    The  Strength  and  Weakness  of  Flexible 
Constitutions. 

The  names  '  Flexible  '  or  '  Fluid,'  which  I  have  sug- 
gested for  Constitutions  of  this  type,  seem  to  suggest 
that  they  are  unstable,  with  no  guarantee  of  solidity 
and  permanence.  They  are  in  a  state  of  perpetual  flux, 
like  the  river  of  Heraclitus,  into  which  a  man  cannot 
step  twice.  Not  only  are  new  laws  constantly  passed 
which  more  or  less  affect  them,  but  their  mere  working 
tends  to  alter  them  daily.  Just  as  every  man's  character 
is  being  every  day  insensibly  modified  by  the  acts  he  does, 
by  the  thoughts  he  cherishes,  by  the  emotions  which  each 
new  experience  of  life  brings  with  it,  so  every  decade 
saw  the  Constitution  of  Rome,  and  sees  the  Constitution 
of  England,  slightly  different  at  the  end  of  even  so  short 
a  period  from  what  it  was  at  the  beginning.  Even  a  de- 
liberately conservative  policy  cannot  arrest  this  process 
of  variation.  If  the  change  does  not  for  a  time  appear 
in  the  laws,  it  is  in  progress  in  the  minds  of  men,  and  may 
have  all  the  more  violent  a  working  when  it  begins  to 
tell  upon  legislation.  A  reaction,  such  as  that  carried 
through  by  Lucius  Cornelius  Sulla  at  Rome,  or  that 
which  followed  the  fall  of  the  Cromwellian  Protectorate 
in  England,  is  almost  as  fertile  in  change  as  a  time  of 
revolution.     The  past  can  never  be  effaced,  since  the 


140  FLEXIBLE  A\l>  RIGID   VOXHTITUTIONS 

recollection  of  it  is  an  element  in  shaping  the  future,  and 
the  measures  taken  to  restore  a  status  quo  ante  always 
contain  much  which  was  not  in  that  status  quo  ante,  much 
which  is  in  itself  new,  and  the  source  of  further  novelties. 
The  only  cases  in  which  constitutional  development  can 
be  said  to  stop  are  those  where,  as  at  Venice  and  in  some 
of  the  cities  of  post-mediaeval  Switzerland,  an  oligarchy 
gets  control  of  the  government,  and,  in  extinguishing 
the  spirit  and  the  habits  of  freedom,  arrests  the  natural 
processes  of  movement  and  development  until  some 
powerful  neighbour  overthrows  the  State,  or  internal 
economic  changes  induce  a  revolution.  Even  under  a 
despotism,  the  system  of  government  changes  insensibly 
from  century  to  century,  as  it  did  in  the  old  French 
monarchy,  and  as  it  has  recently  done  among  a  people 
so  stagnant  as  the  Turks.  But  despotic  systems,  being 
scarcely  classifiable  as  Constitutions,  do  not  come  within 
our  present  inquiry. 

These  things  being  so,  it  seems  natural  to  assume  that 
Flexible  (the  so-called  'unwritten')  Constitutions,  having 
been  enacted  and  being  alterable  by  the  ordinary  legis- 
lative authority,  and  not  being  contained  in  any  specially 
sacred  instrument,  will  in  fact  be  subject  to  frequent  and 
large  changes,  and  will  moreover  be  so  readily  trans- 
gressed in  practice,  that  they  will  furnish  an  insufficient 
guarantee  for  public  order  and  for  the  protection  of 
private  rights. 

The  facts,  however,  do  not  support  this  assumption. 
Let  us  take  our  two  typical  instances,  Rome  and  Eng- 
land. The  Roman  Constitution  is  an  extreme  case  of 
a  Frame  of  Government  capable  of  being  changed  in 
the  quickest  and  simplest  way.  Nothing  was  needed 
but  a  vote  of  the  eomitia,  on  the  proposition  of  a  com- 
petent magistrate,  accompanied  by  the  silence  of  the 
tribunes.  No  doubt  any  single  tribune  could  paralyse 
the  action  of  the  eomitia,  but  in  such  a  community  as 
Rome  became  in  the  later  days  of  the  Republic  it  must 
often  have  been  easy  for  those  who  desired  a  change 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  141 

to  '  get  at,'  or  to  remove,  an  obnoxious  tribune.  Yet 
the  Constitution  of  Rome,  regarded  on  its  legal  side, 
changed  comparatively  little  in  the  three  centuries  that 
lie  between  the  Licinian  laws  and  the  age  of  Sulla,  for 
most  of  those  deviations  from  ancient  usage  which,  as 
we  can  now  see,  were  working  towards  its  fall,  were  in 
form  quite  legal,  being  merely  occasional  resorts  to  ex- 
pedients which  the  Constitution  recognized,  though  they 
had  been  more  rarely  and  more  cautiously  used  in  older 
and  better  days.  So  in  England,  the  exercise  of  the 
sovereign  power  is  lodged  in  an  assembly  which  can,  on 
occasion,  act  with  extraordinary  promptitude,  as  when 
some  while  ago  (April  9,  1883)  the  Explosives  Act  was 
passed  through  the  House  of  Commons  in  a  few  hours 
(the  standing  orders  having  been  suspended),  and  having 
been  forthwith  passed  by  the  House  of  Lords  also,  re- 
ceived the  royal  assent  next  day.  So  the  most  sacred 
rules  and  principles  of  the  Constitution  might  with  per- 
fect legality  of  form  be  abolished — Magna  Charta  and 
the  Bill  of  Rights  and  the  Act  of  Settlement  included — 
just  as  quickly  as  the  Explosives  Act  was  passed.  Yet 
the  main  lines  of  the  English  frame  of  government  have 
since  1689  and  1701  remained  legally  the  same ;  and  the 
most  important  changes  made  since  the  latter  year  have 
been  effected  after  long  and  strenuous  controversies1. 
We  all  know  how  hard  it  is  to  secure  even  small  con- 
stitutional improvements,  such  as  the  abolition  of  the 
provision,  confessedly  useless  and  certainly  troublesome, 
which  obliges  a  member  of  the  House  of  Commons  to 
vacate  his  seat  and  seek  re-election  on  his  being  ap- 
pointed a  Minister  of  the  Crown. 

One  explanation  of  this  apparent  paradox  is  (though 
sometimes  neglected)  obvious  enough.  The  stability 
of  any  constitution  depends  not  so  much  on  its  form  as 
on  the  social  and  economic  forces  that  stand  behind  and 
support  it ;  and  if  the  form  of  the  constitution  corre- 

1  The  two  most  important  changes,  the  Union  with  Scotland  and  the  Union 
with  Ireland,  were,  however,  among  those  most  quickly  carried  through, 


142  FLEXIBLE  AND   RIGID   CONSTITUTIONS 

sponds  to  the  balance  of  those  forces,  their  support 
maintains  it  unchanged.  Two  other  reasons  deserve  to 
be  more  fully  stated. 

A  Flexible  or  Common  Law  Constitution  sometimes 
owes  its  stability  to  the  very  conditions  which  have 
enabled  it  to  grow  out  of  isolated  laws  and  mere  usages 
into  a  firmly  settled  Frame  of  Government.  There  have 
no  doubt  been  many  cases,  such  as  those  of  most  of  the 
Greek  cities  of  antiquity,  where  the  eager  restless  spirit 
of  the  people  and  the  violence  of  faction  never  allowed 
any  system  of  government  to  last  long  enough  to  strike 
deep  root.  Such  constitutions  were  often  enacted  all 
in  one  piece,  and  would  have  been  made  Rigid,  had  the 
citizens  who  enacted  them  known  how  to  make  them  so. 
They  were  seldom  the  growth  of  long-continued  usage. 
But  the  best  instances  of  Flexible  Constitutions  have 
been  those  which  grew  up  and  lived  on  in  nations  of 
a  conservative  temper,  nations  which  respected  antiquity, 
which  valued  precedents,  which  liked  to  go  on  doing 
a  thing  in  the  way  their  fathers  had  done  it  before  them. 
This  type  of  national  character  is  what  enables  the 
Flexible  Constitution  to  develop ;  this  supports  and 
cherishes  it.  The  very  fact  that  the  legal  right  to  make 
extensive  changes  has  long  existed,  and  has  not  been 
abused,  disposes  an  assembly  to  be  cautious  and  mode- 
rate in  the  use  of  that  right.  Those  who  have  always 
enjoyed  power  are  least  likely  to  abuse  it l.  This  truth 
might  be  illustrated  both  from  Rome  and  from  England ; 
and,  indeed,  from  Switzerland  also,  though  the  argument 
which  tries  to  prove  the  stupid  conservatism  of  demo- 
cracy from  the  habits  of  rural  communities  in  the  last- 
named  country  has  been  pressed  too  far  by  Sir  H.  Maine 
and  others,  since  in  rural  communities,  where  nearly 
every  one  is  a  citizen,  and  well  off,  and  most  men  about 
equally  well  off,  the  usual  motives  for  making  political 
changes  do  not  exi^t. 

A  further  reason  may  be  found  in  the  fact  that  a  con- 

1  '  ^pxaiOTrXovrw  Sttmoriov  froAAij  \apif,  Acsch.  Again.  1002. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  143 

stitution  which  has  come  clown  in  the  form  of  a  mass  of 
laws,  precedents  and  customs  is  not  only  more  mysteri- 
ous, and  therefore  more  august,  to  the  minds  of  the  ordi- 
nary citizens  than  one  they  can  read  in  a  document,  but 
is  not  felt  by  them  to  lie  at  their  mercy  and  to  live  only 
by  their  pleasure.  A  constitution  embodied  in  a  docu- 
ment which  they  have  seen  drafted,  and  have  enacted  by 
their  votes,  has  no  element  of  antiquity  or  mystery.  It 
issues  from  the  sovereignty  of  the  people,  it  reminds 
them  of  their  sovereignty,  it  suggests  to  them  nothing 
more  exalted.  Perhaps  it  has  been  the  work  of  one 
party  in  the  State  ;  and  if  that  party  becomes  discredited, 
it  may  share  the  discredit.  The  dignity  which  a  remote 
and  half  mythic  origin  gives  to  constitutions,  as  it  does 
to  royal  families,  was  in  the  ancient  world  and  the  Middle 
Ages  enhanced  by  religious  associations.  In  Greece  and 
Italy  the  tutelary  deities  of  the  city  watched  over  the 
oldest  laws.  In  mediaeval  countries  the  order  of  the 
State  seemed  an  expression  of  the  Will  of  God.  Although 
these  sentiments  have  vanished  from  the  modern  world, 
the  fact  that  an  old  constitution  represents  a  long  course 
of  progressive  development,  or,  to  use  a  somewhat  vul- 
garized term,  of  evolution,  gives  it  some  claim  on  the 
respect  of  imaginative  or  philosophical  minds.  These 
sources  of  moral  strength  have  been  found  sufficient 
in  many  countries  to  secure  an  enduring  life  for  political 
institutions  which  the  people,  or  a  legislative  body,  had 
it  in  their  power  to  change,  and  which,  in  some  instances, 
ought  to  have  been  replaced  by  other  institutions  more 
suited  to  their  altered  environment. 

It  would,  therefore,  be  an  error  to  pronounce  Flexible 
Constitutions  unstable.  Their  true  note,  their  distinctive 
merit,  is  to  be  elastic.  They  can  be  stretched  or  bent 
so  as  to  meet  emergencies,  without  breaking  their  frame- 
work ;  and  when  the  emergency  has  passed,  they  slip  back 
into  their  old  form,  like  a  tree  whose  outer  branches 
have  been  pulled  on  one  side  to  let  a  vehiclepass.  lustbe- 
cause  their  form  is  not  rigidly  fixed,  a  temporary  change 


144  FLEXIBLE  AND   RIGID  CONSTITUTIONS 

is  not  felt  to  be  a  serious  change.  The  sentiment  of  re- 
spect for  the  established  order  is  not  shaken.  The  old 
habits  are  maintained, and  the  machine, modified  perhaps 
in  some  detail  which  the  mass  of  the  people  scarcely 
notice,  seems  to  go  on  working  as  before. 

Whether  the  working  is  really  the  same  is  another 
matter.  During  two  centuries  and  a  half,  from  Edward 
the  Third  till  James  the  First,  the  Constitution  of  Eng- 
land remained  in  its  legal  aspect  scarcely  altered.  Though 
at  some  moments  within  that  period  Parliament  seemed 
to  have  mightily  gained  on  the  Crown,  and  at  others  the 
Crown  seemed  to  be  dominating  Parliament,  yet  it  was, 
until  the  Civil  War,  doubtful  whether  any  permanent 
change  had  been  effected.  From  the  days  of  Queen 
Anne  to  those  of  William  the  Fourth  the  Constitution 
preserved  a  legal  character  practically  the  same.  But 
it  had  been  altered  essentially  in  substance.  So  we  may 
say  that  while  the  Flexible  character  of  a  constitution 
sometimes  enables  it  to  recover  from  shocks  without 
injury,  that  character  sometimes  conceals  the  effects 
of  a  shock,  since  these  effects  may  take  the  form  of 
changes  of  usage  and  changes  of  opinion  among  the 
citizens  which  have  not  been  expressed,  perhaps  hardly 
can  be  expressed,  in  a  definite  legal  form.  The  relations 
to  one  another  of  the  two  Houses  of  the  British  Parlia- 
ment, and  the  relations  of  Parliament  to  the  now  self- 
governing  British  Colonies,  are  instances  in  point. 

Xo  constitution  illustrates  these  phenomena  better 
than  did  that  of  Rome.  It  was  a  complicated  piece  of 
work,  made  of  many  pieces,  firmly  attached,  yet  each 
piece  playing  freely.  It  had  to  be  bent,  twisted,  stretched 
in  many  ways,  under  the  pressure  of  divers  exigencies. 
But  it  stood  the  strain  of  being  bent  or  stretched,  and 
when  the  force  that  had  bent  it  was  withdrawn,  could 
return  so  nearly  to  its  original  shape  as  to  seem  to  have 
never  been  disturbed.  The  change  from  consuls  to 
military  tribunes,  the  frequent  appointment  of  a  dictator, 
the  memorable  episode  of  the  Decemvirate,  the  creation 


FLEXIBLE  AND   RIGID   CONSTITUTIONS  145 

of  new  magistracies,  even  the  admission  of  new  and 
sometimes  large  masses  of  persons  to  citizenship  and 
voting  power,  and  the  adaptation  of  its  old  machinery 
to  the  new  task  of  governing  conquered  provinces,  did 
not,  during  several  centuries,  permanently  disturb  its 
balance  or  seriously  shake  its  main  principles.  Sus- 
pensions of  the  ordinary  rights  of  the  private  citizen, 
extensions  of  the  ordinary  powers  of  the  magistrate, 
which  would  have  ruined  most  States  by  setting  dan- 
gerous precedents,  were  at  Rome  found  harmless  be- 
cause law  and  custom  recognized  them  as  expedients 
available  in  case  of  need,  and,  in  legalizing  them,  took 
away  their  revolutionary  character.  Thus,  being  parts 
of  the  Constitution,  though  parts  to  be  used  only  in 
emergencies,  they  did  not  shock  conservative  sentiment 
nor  encourage  attempts  pernicious  to  freedom — did  not, 
that  is  to  say,  until  at  last  the  character  of  the  city  popu- 
lation had  so  completely  changed  and  the  dominions  of 
the  Republic  had  so  prodigiously  grown  that  the  old 
Constitution  was  obviously  out  of  date,  unfit  for  work 
immensely  heavier  than  that  for  which  it  had  been 
constructed. 

A  Greek  city,  or  an  Italian  city  of  the  Middle  Ages, 
which  delivered  itself  into  the  hands  of  a  dictator  when 
pressed  by  its  neighbours,  almost  invariably  found  that 
it  had  given  itself  a  master  who  refused  to  resign  his 
power  when  the  danger  was  past,  but  continued  to  rule 
as  a  Tyrant  or  Signore.  This  happened  not  merely  be- 
cause the  people  were  passionate  and  the  leading  men 
ambitious,  for  there  was  plenty  both  of  passion  and 
of  ambition  among  the  Romans,  but  largely  because 
in  those  cities  no  provision  was  made  for  such  emer- 
gencies; so  that  when  it  became  necessary  to  place 
extraordinary  powers  in  one  or  few  hands,  the  Consti- 
tution received  a  violent  wrench,  from  which  it  might 
not  recover.  At  Rome  the  contingency  had  been  fore- 
seen, and  the  mode  of  meeting  it  was  legal.  A  spirit 
had  been  formed  among  the  body  of  the  people  as  well 


14t'.  FLEXIBLE  AND   RIGID   CONSTITUTIONS 

as  among  the  leading  men  which  held  ambition  in  check. 
The  dictator  was  not  intoxicated  by  his  elevation.  The 
citizens  did  not  lose  their  faith  in  the  soundness  of  their 
system  ;  and  it  justified  their  confidence. 

The  elasticity  of  the  British  Constitution  appears  in 
somewhat  different  features,  less  striking  perhaps  than 
those  which  mark  Rome,  but  not  less  useful.  We  Eng- 
lish appoint  no  dictators,  seeing  that  we  have  always 
fortunately  had  a  permanent  head  of  the  Executive, 
though  latterly  one  rather  nominal  than  real,  and  have 
seldom  been  exposed  to  the  dangers  which  the  city-states 
of  the  ancient  world  had  to  fear.  I  Jut  we  have  kept  in 
reserve  a  wide  and  vague  prerogative,  which,  though  it 
cannot  in  practice  be  put  in  force  against  the  will  of  the 
representative  House  of  Parliament,  may  be  employed 
to  effect  things  far  more  important  than  many  other 
things  for  which  express  legislative  authority  is  required. 
The  control  of  the  army  and  navy  and  the  control  of 
foreign  policy  are  instances.  There  are,  moreover,  ways 
in  which  the  normal  powers  of  the  Executive  may  be. 
immensely  increased.  When  a  statute,  such  as  the 
Habeas  Corpus  Act,  is  suspended,  or  when  a  Vote  of 
Credit  for  a  very  large  sum  of  money  is  passed,  the 
control  of  the  ordinary  law  and  courts  in  the  one  case, 
and  the  control  of  the  House  of  Commons  in  the  other 
case,  over  the  Ministers  of  the  Crown,  is  for  the  time 
being  (especially  if  Parliament  is  not  sitting)  and  for 
some  purposes  practically  suspended  ;  and  the  Sovereign 
(or  rather  the  Cabinet)  of  to-day  is  almost  replaced  in 
the  position  of  the  last  Tudor  or  the  first  Stuart.  Strin- 
gent measures  to  repress  disorder  may  be  taken  at  home, 
military  operations  may  be  threatened  or  begun  abroad 
which  would  be  beyond  the  legal  competence  of  the 
Crown  in  the  former  case  and  its  ordinary  discretionary 
powers  and  functions,  as  fixed  by  custom,  in  the  latter. 
So  too  when  it  became  necessary  in  view,  not  of  an  emer- 
gency, but  of  the  general  convenience  of  administration, 
to  delegate  to  inferior  authorities  the  supreme  legisla- 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  147 

tive  power  of  Parliament,  advantage  was  taken  of  the  old 
royal  prerogative  and  of  that  ancient  body  the  Privy 
Council.  Parliament  gave  power  to  the  Crown  to  issue 
Orders  in  Council  dealing  with  large  classes  of  matters 
which  must  otherwise  have  been  dealt  with  by  statute ; 
and  these  Orders  take  effect  sometimes  at  once,  some- 
times when  a  certain  period  has  elapsed  during  which 
they  have  lain  before  Parliament  and  received  from  it  no 
disapproval.  In  this  way  a  vast  mass  of  secondary  le- 
gislation is  annually  enacted  which,  though  it  does  not 
directly  issue  from  Parliament,  carries  parliamentary 
authority,  and  does  not  infringe  the  principle  that  Par- 
liament is  the  only  true  source  of  law.  And,  similarly, 
out  of  the  ancient  judicial  functions  of  the  Crown  and 
of  the  Council  which  advised  the  Crown,  functions  which 
a  century  ago  seemed  to  be  lapsing  into  desuetude, 
there  has  been  evolved  a  new  system  of  judicature.  A 
body  called  the  Judicial  Committee  of  the  Privy  Council, 
somewhat  resembling  the  Consistory  of  the  Roman 
Emperors,  has  been  created,  and  now  acts  as  a  Supreme 
Court  of  Appeal  for  all  the  transmarine  possessions  of 
Britain,  whether  Indian  or  Colonial. 

The  merit  of  this  elastic  quality  in  such  Constitutions 
as  the  Roman  and  the  British  is  that  it  affords  a  means 
of  preventing  or  minimizing  revolutions  by  meeting 
them  halfway.  Let  us  note  how  each  kind  of  Consti- 
tution, the  Rigid  and  the  Flexible,  behaves  when  a 
serious  crisis  arrives,  in  which  one  section  of  the  nation 
is  bent  on  changing  the  Constitution,  and  the  other  on 
maintaining  it.  A  Rigid  Constitution,  if  the  legal  means 
provided  for  altering  it  cannot  be  used  for  the  want 
of  the  prescribed  legal  majority,  resists  the  pressure. 
It  may  of  course  resist  successfully,  but  if  so,  probably 
after  a  conflict  which  has  shaken  the  State  and  excited 
hostility  to  it  in  the  minds  of  a  large  part  of  the  people. 
It  may,  however,  if  the  assailing  forces  are  very  strong, 
be  broken,  and  if  so,  broken  past  mending.  A  Flexible 
Constitution,  however,  being  more  easily  and  promptly 


148  FLEXIBLE  A.ND  RIGID  CONSTITUTIONS 

alterable,  and  being  usually  a  less  firmly  welded  and 
cohesive  structure,  can  bend  without  breaking,  can  be 
modified  in  such  a  way  as  to  satisfy  popular  demands, 
can  escape  revolution  by  the  practical  submission  of 
one  of  the  contending  forces  in  the  particular  dispute, 
that  submission  being  recognized  as  a  precedent  which 
will  be  followed,  even  though  it  has  not  been  embodied 
in  any  law  or  other  formal  document.  The  extinction 
of  the  right  once  claimed  by  the  House  of  Lords  to 
alter  money  bills  is  one  instance.  Or  it  may  be  made 
to  evolve  some  organ  which,  though  really  new,  conceals 
its  novelty  by  keeping  some  of  the  old  colour,  and  thus 
it  may  continue  to  work  with  no  palpable  breach  of  con- 
tinuity. The  knowledge  that  a  constitution  can  be 
changed  without  any  tremendous  effort  helps  to  make 
a  party  of  revolution  less  violent  and  a  party  of  resist- 
ance less  stubborn,  disposing  both  to  some  compromise. 
At  Rome  the  resort  to  the  appointment  of  military  tri- 
bunes with  consular  power  when  the  plebs  demanded, 
and  the  patricians  would  not  yet  consent  to  the  election 
of  a  plebeian  Consul,  delayed  revolution  till  opinion  had 
so  changed  that  the  danger  of  revolution  had  passed 
away.  So,  later,  the  compromise  by  which  a  Praetor 
was  created  with  the  functions  of  a  Consul  but  with  a 
special  range  of  duties  appeased  conservative  feeling  and 
smoothed  the  passage  from  the  old  order  to  the  new. 
The  history  of  the  English  Constitution  is  a  history 
of  continual  small  changes,  no  single  one  of  which, 
hardly  even  the  Bill  of  Rights  at  the  time  of  the  so- 
called  Revolution,  or  the  Reform  Act  of  1832,  made 
the  system  look  substantially  different.  Something  no 
doubt  was  cut  away,  and  something  was  added,  but  the 
structure  as  a  whole  seemed  the  same,  because  far  more 
of  the  old  was  left  than  there  was  added  of  the  new. 

The  two  main  processes  which  have  turned  the  govern- 
ment of  England  from  the  monarchy  of  the  Tudors  into 
what  may  be  called  the  plutocratic  democracy  of  to-day 
have  been  the  limitation  of  the  royal  prerogative  and  the 


FLEXIBLE  ASD  RliJlD  CONSTITUTIONS  149 

transference  of  the  right  of  suffrage  from  a  few  to  the 
multitude.  Both  processes  have  gone  on  slowly,  by  a 
succession  of  steps,  each  comparatively  small,  but  all 
in  the  same  direction.  Accordingly  the  strife  of  parties 
has  been  mitigated  by  the  existence  at  all,  or  nearly  all, 
moments,  of  a  large  body  of  persons  who  desired  reform, 
but  only  a  moderate  reform.  They  are  the  persons  who 
impose  compromise  on  the  extremists  to  the  right  and 
to  the  left  of  them,  and  they  can  do  so  because  the  Con- 
stitution permits  small  reforms  to  be  easily  effected. 
The  party  of  change,  which  would  be  a  party  of  revolu- 
tion if  it  was  obliged  to  have  large  changes  or  none,  is 
apt  to  be  divided,  and  its  more  moderate  section  is,  or 
soon  passes  into,  a  party  only  of  reform.  The  English 
Chartists  of  1840-50  caused  some  alarm.  But  between 
them  and  the  old  Constitutional  Whigs  there  were  several 
sections  of  opinion  passing  by  imperceptible  gradations 
into  one  another ;  and  when  it  was  seen  that  the  current 
was  setting  towards  changes  approximating  to  those 
which  the  Chartists  demanded,  their  less  violent  men 
were  by  degrees  reabsorbed  into  the  general  body  of 
the  Whig  or  Liberal  party,  the  latter  at  the  same  time 
moving  with  the  times ;  and  some  of  those  changes,  in 
particular  vote  by  ballot,  were  ultimately  obtained  with 
no  great  friction. 

It  must  nevertheless  be  remembered  that  in  the  history 
of  most  States  a  crisis  is  apt  to  arrive  when  elasticity 
becomes  a  danger,  in  that  it  tempts  people  to  abuse  the 
facility  for  change.  There  is  no  better  sign  of  strength 
in  a  man's  physical  constitution  than  his  being  able  to 
make  some  short,  sudden,  and  violent  effort  without 
suffering  afterwards  from  doing  so  ;  and  there  is  nothing 
of  which  the  happy  possessor  of  such  strength  is  more 
proud.  But  those  men  who  have  reached  middle  life  are 
aware  that  the  temptation  to  strain  one's  strength  in  this 
exultant  spirit  is  perilous.  Repeated  impunity  is  apt  to 
encourage  a  man  to  go  on  trying  experiments  when  the 
conditions  are  perhaps  less  favourable,  or  when  the  re- 


150  FLEXIBLE  AND   RIGID   CONSTITUTIONS 

serve  of  force  is  less  abundant  than  it  was  in  youth.  The 
story  goes  that  the  famous  Milo  of  Croton,  passing  alone 
through  a  forest,  saw  an  oak  into  which  woodmen  who 
were  preparing  to  fell  it  had  driven  wedges.  Pulling  out 
the  wedges,  he  tried  to  rive  it  asunder.  But  he  had  no 
longer  the  fullness  of  his  youthful  strength.  The  re- 
turning tree  caught  him  by  the  hands  and  held  him  fast 
till  he  died.  In  our  own  days  Captain  Webb,  stimu- 
lated by  his  feat  in  swimming  across  the  English  Channel, 
sought  still  bolder  exploits,  and  perished  in  the  Whirl- 
pool Rapid  below  Niagara  Falls.  So  the  Romans,  hav- 
ing many  a  time  given  exceptional  powers  for  special 
occasions  to  their  magistrates,  found  at  last  that  they 
had  created  precedents  which  enabled  the  old  free  Con- 
stitution to  be  in  substance  overthrown.  Sulla  became 
a  dictator  of  a  new  kind.  After  a  while  he  resigned  his 
power,  but  the  example  showed  that  monarchy  was  not 
far  off.  Julius  Caesar  also  received  exceptional  authority, 
and  used  it  to  form  an  army  which  extinguished  the 
Republic.  The  dictatorship  he  had  held  passed  under 
other  forms  into  permanent  absolutism,  and  what  was 
practically  a  revolution  was  ultimately  carried  through 
with  a  certain  deference  to  the  old  constitutional  forms. 
In  England,  Parliament,  during  the  sixteenth  century, 
once  or  twice  gave  powers  to  the  Crown  which  brought 
the  Constitution  into  danger.  In  the  seventeenth  cen- 
tury the  monarchy  was  abolished,  and  a  Protectorate  set 
up  by  revolutionary  methods.  This  was  the  result  of  a 
war  which'had  destroyed  a  vital  part  of  the  old  machine, 
much  to  the  regret  of' most  of  those  who  had  in  the  first 
instance  taken  up  arms.  We  have  never  since  that  date 
(except  under  King  James  the  Second)  seen  the  Consti- 
tution in  any  real  danger. 

It  is,  however,  often  suggested  that  the  enormous 
power  possessed  by  Parliament  might  be  used  to  upset 
fundamental  institutions  with  reckless  haste,  and  that 
it  might  therefore  be  prudent  to  impose  restrictions  on 
parliamentary  action.     And  those  who  note  the  way  in 


FLEXIBLE  AND   RIGID    CONSTITUTIONS  151 

which  Parliament  bends  and  staggers  under  the  increas- 
ing burden  of  work  laid,  on  it,  coupled  with  the  inade- 
quacy of  its  rules  to  secure  the  prompt  dispatch  of  busi- 
ness *,  have  frequently  predicted  that  the  House  of  Com- 
mons may  one  day  deliver  itself  into  the  hands  of  the 
Cabinet,  the  power  of  party  organization  having  grown 
so  strong  that  the  head  of  each  Cabinet  will  be  deemed 
a  sort  of  dictator,  drawing  his  authority,  nominally  of 
course,  from  the  House  of  Commons,  but  really  from 
a  so-called  direct  '  mandate  '  of  the  electors  2.  Others 
draw  a  yet  more  horrible  picture  of  a  party  machine, 
which  they  call  the  Caucus,  dictating  a  policy  to  the  elec- 
tors on  the  one  hand,  and  to  the  Cabinet  on  the  other, 
itself  reigning  in  the  spirit  of  a  tyrant,  but  under  the 
forms  of  the  Constitution.  If  the  British  Constitution, 
as  we  have  hitherto  known  it,  should  perish,  there  is  little 
reason  to  fear  it  will  do  so  in  this  eminently  ignoble 
fashion  3. 

When  Flexible  Constitutions  come  to  an  end,  they  do 
so  in  one  of  two  ways.  Sometimes  they  pass  into  an 
autocracy,  either  dying  a  violent  death  by  revolution, 
or  expiring  in  a  more  natural  manner  through  the  ex- 
tension and  development,  under  legal  forms,  of  one  of 
their  organs,  to  a  point  at  which  it  practically  super- 
sedes and  replaces  the  other  organs.  Sometimes,  on 
the  other  hand,  they  pass  into  Rigid  Constitutions. 
The    causes   which    induce    this    latter    change    belong, 

1  This  was  written  in  1884.  Since  that  year  sweeping  changes  have  been  made 
in  the  procedure  of  the  House  of  Commons  which  have  greatly  curtailed  the  rights 
and  opportunities  of  private  members  while  increasing  the  powers  of  the  Ministry 
of  the  day.  They  have  not,  however,  made  that  House  able  to  discharge  all  or 
nearly  all  the  work  that  falls  on  it ;  and  it  is  becoming  (under  the  new  rules)  less 
and  less  careful  in  the  exercise  of  its  powers  of  voting  money. 

2  This  apprehension  was  often  expressed  between  1880  and  1885.  Nothing  has 
occurred  since  to  justify  it  so  far  as  the  dictatorship  of  any  single  person  is  con- 
cerned ;  and  it  may  have  in  great  part  arisen  from  the  fact  that  from  1867  to  1885 
the  headships  of  both  the  two  great  parties  had  been  vested  in  exceptionally  vigo- 
rous and  influential  leaders.  There  can  however  be  no  doubt  that  the  power  of 
the  Cabinet  as  against  the  House  of  Commons  has  grown  steadily  and  rapidly: 
and  it  appears  (1901)  to  be  still  growing. 

3  Of  this  supposed  danger  also  much  less  is  heard  now  than  in  18S4.  The  thing 
that  was  then  called  the  '  Birmingham  Caucus'  has  ceased  to  be  used  to  terrify 
the  timid. 


152  FLEXIBLE  AND  RIGID  CONBTITVTIONB 

however,  to  the  examination  of  that  second  type  of  Con- 
stitution ;  and  will  be  considered  when  we  have  surveyed 
some  further  features  characteristic  of  the  Flexible  type. 

VI.    Aristocracies  and  Flexible  Constitutions. 

Flexible  Constitutions  have  a  natural  affinity  for  an 
aristocratic  structure  of  government.  I  do  not  mean 
merely  that  they  spring  up  at  times  when  power  is  in 
the  hands  of  the  well-born  or  rich,  for  the  stage  of  society 
in  which  constitutions,  properly  so  called,  begin  to  exist, 
is  nearly  always  oligarchic,  even  if  there  be  a  monarch  at 
the  head  of  it.  But  there  is  a  sort  of  natural  attraction 
between  an  aristocracy  and  an  undefined  and  elastic 
form  of  government,  as  there  has  begun  to  be,  in  most 
modern  countries,  a  natural  repulsion  between  such  a 
form  and  a  pure  democracy.  It  needs  a  good  deal  of 
knowledge,  skill  and  experience  to  work  a  Flexible  Con- 
stitution safely,  and  it  is  only  in  the  educated  classes  that 
these  qualities  can  be  looked  for.  The  masses  of  a 
modern  nation  seldom  appreciate  the  worth  of  ancient 
usages  and  forms,  or  the  methods  of  applying  precedents. 
In  small  democratic  communities,  such  as  are  the  Forest 
Cantons  of  Switzerland,  this  attachment  to  custom  may 
be  found,  because  there  traditions  have  passed  into  the 
life  of  the  people,  and  the  maintenance  of  ancient  forms 
has  become  a  matter  of  local  pride.  But  in  a  large  nation 
it  is  only  educated  men  who  can  comprehend  the  ar- 
rangements of  a  complicated  system  with  a  long  history, 
who  can  follow  its  working, and  themselves  apply  its  prin- 
ciples to  practice.  The  uninstructed  like  something  plain, 
simple  and  direct.  The  arcana  imperii  inspire  suspicion, 
a  suspicion  seldom  groundless,  because  the  initiated  are 
apt  to  turn  a  knowledge  of  secrets  to  selfish  purposes. 
Now  a  Common  Law  Constitution  with  its  long  series 
of  precedents,  some  half  obsolete,  some  of  doubtful  inter- 
pretation, is  full  of  arcana.  Even  to-day,  though  the  pro- 
cess of  clarification  and  simplification  has  gone  on  fast 


FLEXIBLE  ASD  RIGID  CONSTITUTIONS  153 

since  1832,  dark  places  are  still  left  in  the  British  Consti- 
tution. 

There  is,  however,  a  further  reason  why  Common  Law 
Constitutions  accord  better  with  aristocratic  than  with 
democratic  sentiment.  They  allow  a  comparatively 
wide  discretion  to  the  chief  officials  of  State,  such  as 
the  higher  magistrates  at  Rome  and  the  Ministers  of  the 
Crown  in  England.  The  functions  of  these  officials  are 
not  very  strictly  defined,  because  legal  enactments, 
though  they  limit  power  in  certain  directions  (far  more 
rigidly  now  in  England  than  was  the  case  at  Rome),  do 
not  draw  a  completely  closed  circle  round  it,  but  leave 
certain  gaps,  through  which  tradition  and  precedent 
permit  it,  so  to  speak,  to  shoot  out  and  play  freely. 
Aristocracies  prize  this  latitude.  They  prize  it  because 
it  is  mainly  to  prominent  members  of  their  class  that 
offices  fall,  and  these  persons  are  then  able  to  act  with 
freedom,  to  assert  their  individual  wills,  to  carry  out  their 
views  unchecked  by  the  dread  of  transgressing  a  statute. 
On  the  other  hand,  the  less  conspicuous  members  of 
the  upper  class  have  at  any  rate  little  reason  to  fear 
harm  from  the  wide  authority  of  the  officials,  because 
their  social  position,  and  the  influence  of  their  family 
connexions,  protect  them  from  arbitrary  treatment. 
The  masses  of  the  people  have  neither  advantage.  Very 
few  of  them  can  hope  to  enjoy  power.  Any  one  of  them 
may  suffer  from  an  exercise  of  it,  which,  because  not 
positively  illegal,  gives  him  no  claim  for  redress.  They 
have,  therefore,  everything  to  gain  and  nothing  to  lose 
if  they  can  restrict  it  by  those  definite  and  fixed  limita- 
tions which  are  congenial  to  Rigid  rather  than  to  Flex- 
ible Constitutions.  And  in  the  history  of  most  peoples 
a  time  arrives  when,  the  love  of  equality  being  reinforced 
by  the  distrust  of  authority,  there  is  a  movement  to  cut 
down  the  powers  of  the  rulers  to  the  lowest  point  com- 
patible with  the  safety  of  the  State.  The  extent  to  which 
this  process  has  gone  is  in  any  nation  a  fair  test  of  the 
gains  made  by  the  democratic  principle  upon  the  aristo- 


l.M  FLEXIBLE   AND  RUSH)   COSHTITI  TIOSS 

cratic.  But  in  this  respect  the  course  things  have  taken 
in  England  has  been  very  unlike  that  which  they  took  at 
Rome.  One  of  the  first  events  which  the  authentic  his- 
tory of  Rome  records  is  the  effort  of  the  plebeians  to 
secure  a  limitation  of  the  power  of  the  Consuls  by  having 
statutes  passed  to  define  it.  The  effort  failed.  It  is  cha- 
racteristic of  the  Romans  that  it  should  have  failed.  Sta- 
tutes, known  afterwards  as  the  Laws  of  the  Twelve  Ta- 
bles, were  enacted,  statutes  which  doubtless  on  the  whole 
improved  the  position  of  the  plebeians.  But  the  powers 
of  the  Consuls  remained  wide  and  legally  indefinite  down 
till  the  time  when  life  went  out  of  them  under  the  shadow 
of  an  autocrat  who  ruled  for  life.  Limited  of  course 
these  powers  had  to  be  as  time  went  on  and  the  popular 
element  in  the  constitution  was  developed,  but  the  limi- 
tations were  imposed,  not  by  narrowing  the  powers 
themselves,  but  by  the  introduction  of  new  factors.  The 
two  Consuls,  being  chosen  from  a  circle  less  narrow 
than  in  the  old  days,  were  more  frequently  at  variance 
with  one  another.  Other  officials  were  set  up  over 
against  the  Consuls,  who  could  (if  they  pleased)  interfere 
to  restrain  the  Consuls.  And  thirdly,  the  permanent 
non-representative  Council  of  Elders  (the  Senate),  com- 
posed mainly  of  ex-officials,  increased  its  influence,  and 
could  generally  hold  the  magistrates  in  check.  Things 
went  very  differently  in  England.  There  the  prerogative 
of  the  Crown  was  the  force  of  which  the  nobles  as  well  as 
the  commons  stood  in  dread,  and  they  united  in  the  effort 
to  restrict  it  down  till  a  time  when  the  commons  were 
strong  enough  to  dispense  with  the  help  of  more  than  a 
section  of  the  landowning  magnates.  In  steadily  reduc- 
ing the  prerogative  of  the  Crown,  in  lopping  off  some 
parts  of  it  and  strictly  defining  others,  they  restricted  the 
powers  of  the  Crown  and  its  Ministers,  until  at  last  they 
had  so  firmly  established  the  right  of  the  representative 
assembly  to  prescribe  to  the  Crown  what  persons  it 
should  employ  as  Ministers  that  the  old  motive  for  limit- 
ing the  prerogative  vanished.     Those   who   had   been 


FLEXIBLE  AND   RIGID   CONSTITUTIONS  155 

feared  as  masters  were  now  trusted  as  servants.  The 
people  no  longer  disliked  what  was  left  of  the  royal  pre- 
rogative, because  their  representatives  could  control  the 
persons  who  wielded  it,  and  the  members  of  the  ruling 
assembly  began  to  feel  that  it  was  in  the  public  interest, 
and  not  against  their  own  personal  interest,  to  maintain 
the  powers  of  Ministers,  because  many  things  could  be 
done  more  easily  and  more  promptly  through  these 
powers  than  by  the  passing  of  statutes  for  dealing  with 
each  matter  in  detail.  There  may  even  be  a  danger,  in  this 
new  condition  of  things,  that  the  royal  prerogative  will 
be  used  too  freely,  because  that  prerogative  now  means 
the  will  of  the  leaders  of  the  parliamentary  majority, 
whose  action  might  at  a  moment  of  excitement  be  ap- 
plauded and  sustained  by  their  followers  even  should  it 
transcend  the  limits  fixed  by  constitutional  usage. 

It  has  been  already  remarked  that  the  system  of  checks 
in  the  Roman  Constitution  differed  essentially  from  that 
employed  in  the  English.  Every  constitution  must  of 
course  have  a  system  of  checks,  else  it  will  quickly  perish, 
or,  to  vary  the  metaphor,  it  must  so  dispose  the  ballast  as 
to  enable  the  vessel  to  recover  her  equilibrium  after  a 
violent  oscillation.  At  Rome  the  checks  consisted  in  the 
coexistence  of  various  magistrates  who  could  arrest  one 
another's  action,  and  in  a  permanent  Senate  with  a  large 
though  somewhat  ill-defined  control,  while  the  popular 
assembly,  in  theory  omnipotent,  was  in  fact  restrained 
by  a  number  of  curious  features  in  its  procedure  which 
made  it  much  less  effective  than  was  the  primary  popular 
assembly  in  most  of  the  Greek  republics.  It  could  act 
only  when  convoked  by  a  magistrate,  could  have  its 
action  stopped  by  another  magistrate,  and  was  fre- 
quently overreached  or  circumvented  by  the  Senate.  In 
England,  on  the  other  hand,  the  Crown,  which  before 
the  conflicts  of  the  seventeenth  century  had  been  the 
predominant  power  which  needed  to  be  checked,  and 
which  frequently  was  checked,  by  Parliament,  becomes 
after  that  time  capable  only  of  occasionally  baffling  (and 


156  FLEXIBLE   AM)   RIGID   CONSTITUTIONS 

that  less  and  less  as  time  went  on)  the  now  predominant 
Parliament,  while  the  restraint  on  hasty  or  violent  action 
by  Parliament  was  found,  partly  in  the  division  of  Par- 
liament into  two  Houses,  and  partly,  especially  after 
the  Upper  House  had  begun  to  lose  moral  weight,  and 
had  passed  more  and  more  under  the  control  of  one  party 
in  the  State,,  in  the  fact  that  an  assembly  of  representa- 
tives, nearly  all  of  whom  belonged  to  the  wealthier  and 
so-called  upper  classes,  was  pervaded  by  a  conservative 
temper.  A  representative  body,  the  members  of  which 
are  mostly  satisfied  with  the  world  as  it  is,  and  who  are 
sufficiently  instructed  to  respect  the  traditions  of  admi- 
nistration, is,  except  where  a  question  arises  which  stirs 
class  passions,  less  prone  to  ill-considered  action  than 
is  an  assembly  of  all  the  citizens,  such  as  was  the  Ecclesia 
of  Athens  or  Syracuse,  where  the  large  majority  were 
humble  folk,  and  where  the  sympathy  of  numbers  made 
the  ascendency  of  emotion  over  reason  doubly  danger- 
ous. Thus,  as  compared  with  the  democracies  of  the 
city-states  of  antiquity,  the  representative  character  of 
the  assemblies  of  modern  Europe  has  been  a  moderating 
factor.  But  these  assemblies  are  now  changing  their 
character,  as  the  countries  in  which  they  exist  have 
changed.  The  progress  of  science  has,  through  the 
agency  of  railways  and  telegraphs,  of  generally  diffused 
education,  and  of  cheap  newspapers,  so  brought  the  in- 
habitants of  large  countries  into  close  and  constant  rela- 
tions with  one  another  and  with  their  representatives, 
that  the  conditions  of  a  small  city-state  are  being  repro- 
duced. A  man  living  at  Kirkwall  knows  what  happened 
last  night  in  London,  eight  hundred  miles  away,  sooner 
and  more  fully  than  a  man  living  in  Marathon  (distant 
eight  hours'  walking")  knew  what  had  happened  the  day 
before  in  Athens.  The  same  news  reaches  all  the  citizen 
at  the  same  time,  the  same  emotion  affects  all  simultane- 
ously, and  is  intensified  by  reverberation  through  the 
press.  The  nation  is,  so  to  speak,  compressed  into  a  much 
smaller  space  than  it  filled  three  centuries  ago,  and  has 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  157 

become  much  more  like  a  primary  assembly  than  it  was 
then.  If  concurrently  with  this  change  there  should 
come,  as  some  presage,  a  closer  and  more  constant  con- 
trol of  the  members  of  the  representative  assembly  by 
their  constituents,  the  representatives  becoming  rather 
delegates  acting  under  instructions  than  men  chosen  to 
speak  and  vote  because  they  are  deemed  trusty  and 
intelligent,  much  of  the  moderative  value  which  the  re- 
presentative system  has  possessed  will  disappear. 

It  need  not  be  thought  that  in  England  at  least  there 
is  any  immediate  risk  of  evils  to  be  expected  from  the 
change  which  has  been  noted.  Representatives  have  not 
yet  become  delegates,  and  if  they  do,  it  will  be  rather 
their  own  fault  than  that  of  the  electors,  for  the  electors 
respect  courage  and  value  independence.  In  England 
the  power  of  party  organizations  over  constituencies  and 
members,  if  it  grows,  grows  slowly.  It  is,  in  fact,  not  so 
much  these  organizations  as  small  sections  of  opinion 
or  organized  '  interests,'  seeking  some  advantage  for 
themselves,  that  try  to  terrorize  candidates.  There  is 
still  a  valuable  check  on  possible  recklessness  on  the  part 
of  Parliament  in  the  fact  that  it  is  (unlike  some  popular 
assemblies)  guided  by  responsible  Ministers,  who  have 
hitherto  seldom  been  mere  demagogues,  and  who  have 
experience  behind  them,  prospects  of  future  dignity  be- 
fore them,  and  the  opinion  of  their  own  class  around 
them.  All  that  I  wish  to  point  out  is  that  a  change  has 
passed  on  the  conditions  under  which  representative 
assemblies  act,  which  in  making  them  more  swiftly  re- 
sponsive to  public  sentiment,  increases  some  of  the  risks 
always  incident  to  popular  government.  History  has  not 
spoken  her  last  word  about  Flexible  Constitutions. 
Rather  may  she  be  opening  a  new  stage  in  their  develop- 
ment. 


15S  FLEXIBLE   AND    Rid  ID    COSSTITUTIONS 


VII.    The  Influence  of  Constitutions  on  the  Mind 
of  a  Nation. 

We  have  been  considering  what  are  the  conditions 
present  in  a  nation  which  make  it  prefer  a  particular 
kind  of  constitution.  Now  let  us  approach  the  converse 
question,  and  inquire  what  will  be  the  influence  on  the 
political  ideas  and  habits  of  a  nation  of  these  Constitu- 
tions of  the  Common  Law,  or  Flexible  type,  and  what 
are  the  features  of  national  character  which  will  enable 
such  constitutions  to  live  on  and  prosper. 

Forms  of  government  are  causes  as  well  as  effects, 
and  give  an  intellectual  and  moral  training  to  the  peoples 
that  live  under  them,  as  the  character  of  a  parent  affects 
the  children  of  the  household.  Now  the  Common  Law 
Constitution,  with  its  complexity,  its  delicately  adjusted 
and  balanced  machinery,  its  inconsistencies,  its  nuances — 
one  is  driven  to  French  because  there  is  no  English  word 
to  express  the  tendency  of  a  tendency — its  abundance  of 
unsettled  points,  in  which  a  refined  sense  can  perceive 
what  the  decision  ought  in  each  case  to  be  without  being 
able  to  lay  down  a  plain  and  positive  rule — such  a  con- 
stitution must  undoubtedly  polish  and  mature  in  the 
governing  class  a  sort  of  tact  and  judgement,  a  subtlety 
of  discrimination  and  a  skill  in  applying  old  principles 
to  new  combinations  of  facts,  which  make  it  safe  for  a 
people  to  leave  wide  powers  to  their  magistrates  or  their 
governing  assembly.  A  sense  grows  up  among  those 
who  have  to  work  the  constitution  as  to  what  is  and  is 
not  permissible  under  it,  and  that  which  cannot  be  ex- 
pressed in  the  stiff  phrases  of  a  code  is  preserved  in  the 
records  of  precedents  and  shines  through  the  traditions 
which  form  the  minds  of  the  rulers.  Tin's  kind  of  consti- 
tution lives  by  what  is  called  its  Spirit.  'The  letter  W i  11- 
eth,  but  the  spirit  giveth  life.' 

Evidently,  however,  it  is  only  among  certain  nations 
with  certain  gifts  that  such  a  constitution  will  come  to 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  159 

maturity  and  become  a  subject  for  science  as  well  as 
a  work  of  art.  Three  things  seem  needful.  One  is  legal- 
mindedness,  a  liking  and  a  talent  for  law.  Another  is  a 
conservative  temper,  by  which  I  mean  the  caution  which 
declines  to  make  changes  save  when  a  proved  need  for 
change  arises,  so  that  changes  are  made  not  suddenly, 
but  slowly  and  bit  by  bit.  The  third  is  that  intellectual 
freshness  and  activity  which  refuses  to  be  petrified  by 
respect  for  law  or  by  aversion  to  change.  It  is  only 
where  these  three  qualities  are  fitly  mixed  or  evenly 
balanced  that  either  a  great  system  of  law  or  a  finely 
tempered  and  durable  constitution  can  grow  up.  Many 
otherwise  gifted  peoples  have,  like  the  Athenians  in  an- 
cient and,  longo  intervallo,  the  Spaniards  in  modern  times, 
wanted  one  or  other  of  these  qualities,  and  have  there- 
fore failed  to  enrich  the  world  by  law  or  by  consti- 
tutions. Perhaps  it  was  partly  owing  to  their  possessing 
other  gifts,  scarcely  compatible  with  these,  that  the 
Athenians  did  fail. 

But  although,  when  a  nation  has  reached  the  point  at 
which  its  law  begins  to  be  scientific,  the  law  and  the 
constitution  become  teachers,  it  must  be  remembered 
that  the  training  they  give  is  mainly  given  to  the  classes 
which  practise  law  and  administer  the  State.  For 
though  a  nation  as  a  whole  may  come  to  understand  and 
appreciate  in  outline  its  constitution,  and  may  attain  to 
a  fairly  correct  notion  of  the  functions  of  each  organ  of 
government,  only  a  comparatively  small  section  com- 
prehends the  system  well  enough  to  work  it  or  to  criti- 
cize its  working.  For  such  comprehension  there  is 
needed  not  only  some  knowledge  of  history  but  also 
close  and  continuous  observation  of  the  machinery  in  mo- 
tion, and  either  participation  in  the  business  of  govern- 
ing or  association  with  those  who  are  carrying  on  that 
business.  The  mass  of  the  nation  cannot  be  expected  to 
possess  this  familiarity.  They  are  like  the  passengers 
on  board  an  ocean  steamer,  who  hear  the  clank  of  the 
engine  and  watch  the  stroke  of  the  piston  and  admire  the 


1G0  FLEXIBLE  AND  RIGID  CONSTITUTIONS 

revolution  of  the  larger  wheels,  and  know  that  steam  acts 
by  expansion,  but  do  not  know  how  the  less  conspicuous 
but  not  less  essential  parts  of  the  machinery  play  into 
the  other  parts,  and  have  little  notion  of  the  use  of  fly- 
wheels and  connecting-rods  and  regulators.  They  can 
see  in  what  direction  the  vessel  is  moving,  and  can  con- 
jecture the  rate  of  speed,  but  they  must  depend  on  the 
engineers  for  the  management  of  boilers  and  engines,  as 
they  do  on  the  captain  for  the  direction  of  the  ship's 
course.  In  the  earlier  stages  of  national  life,  the  masses 
are  usually  as  well  content  to  leave  governing  to  a  small 
upper  class  as  passengers  are  to  trust  the  captain  and 
the  engineers.  But  when  the  masses  obtain,  and  feel 
that  they  have  obtained,  the  sovereignty  of  the  country, 
this  acquiescence  can  no  longer  be  counted  on.  Men 
without  the  requisite  knowledge  or  training,  men  who, 
to  revert  to  our  illustration,  know  no  more  than  that 
steam  acts  by  expansion  and  that  a  motion  in  straight 
lines  has  to  be  turned  into  a  rotary  one,  men  who  are  not 
even  aware  of  the  need  for  knowledge  and  training,  men 
with  little  respect  for  precedents,  and  little  capacity  for 
understanding  their  bearing,  may  take  command  of  en- 
gines and  ship:  and  the  representative  assembly  may 
be  filled  by  those  who  have  no  sense  of  the  dangers  to 
which  an  abuse  of  the  vast  powers  of  the  assembly  may 
lead.  If  such  a  change  arrives,  it  imposes  a  severe  strain 
on  the  constitution  ;  and  that  elasticity  which  has  been  its 
merit  may  prove  its  danger. 

It  may  accordingly  be  said  that  one  of  three  condi- 
tions is  generally  necessary  for  the  salvation  of  a  Flex- 
ible Constitution.  Either  (i)  the  supremacy  must  re- 
main in  the  hands  of  a  politically  educated  and  politically 
upright  minority,  or  (2)  the  bulk  of  the  people  must  be 
continuously  and  not  fitfully  interested  in  and  familiar 
with  politics,  or  (3)  the  bulk  of  the  people,  though  legally 
supreme,  must  remain  content,  while  prescribing  certain 
general  principles,  to  let  the  trained  minority  manage  the 
details  of  the  business  of  governing.    Of  these  conditions 


FLEXIBLE  AND   RIGID   CONSTITUTIONS  161 

the  first  has  disappeared  from  nearly  all  civilized  coun- 
tries. The  second  has  always  been  rare,  and  in  large 
industrial  countries  is  at  present  unattainable.  The  best 
chance  of  success  is  therefore  to  be  found  in  the  presence 
of  the  third ;  but  it  needs  to  be  accompanied  by  a  tone 
and  taste  and  sense  of  public  honour  among  the  people 
which  will  recoil  from  the  mere  demagogue. 

Both  the  influence  of  its  constitution  upon  a  nation 
and  the  need  of  certain  qualities  in  order  to  work  a 
Flexible  Constitution  are  well  illustrated  in  the  history 
of  the  Roman  commonwealth.  Of  all  famous  constitu- 
tions it  was  the  most  flexible.  It  lived  long  and  over- 
came many  perils  because  it  grew  up  among  a  people 
who  possessed  in  an  eminent  degree  the  three  qualities 
of  legalmindedness,  of  conservatism,  and  of  keen  practi- 
cal intelligence.  It  trained  the  national  mind  to  a  respect 
for  order  and  legality,  and  had  doubtless  much  to  do  with 
the  forming  of  that  constructive  genius  which  created 
the  whole  system  of  Roman  private  law.  It  fell  at  last 
because  the  mass  of  the  citizens  became  unfit  to  dis- 
charge their  function  in  the  scheme.  They  did  not,  it  is 
true,  press  into  the  inner  circle  of  the  governing  class. 
The  success  first  of  the  well-born  and  then  of  the  rich  in 
keeping  the  offices  in  their  own  hands  all  through  is  one 
of  the  most  remarkable  features  of  Roman  history.  But; 
they  were  corrupt  and  reckless  in  the  bestowal  of  power, 
and  had  really  ceased  to  care  for  the  freedom  and  welfare 
of  the  State.  The  ruling  classes,  on  the  other  hand,  were 
tempted  by  the  demoralization  of  the  masses  to  be  their 
corrupters,  and  lost  their  old  respect  for  legality.  Even 
a  conscientious  philosopher  like  Cicero  did  not  scruple 
to  put  prisoners  to  death  without  trial,  and  to  justify 
himself  by  citing  an  act  of  lawless  violence  done  four 
centuries  before.  The  leading  Romans  of  that  day  were 
as  fit  as  ever  to  work  the  system,  so  far  as  skill  and 
knowledge  went,  but  they  had  not  the  old  regard  for  its 
principles, nor  the  old  sense  of  public  duty ;  and  the  prizes 
which  office  offered  now  that  Rome  was  mistress  of  the 
it 


Ifi2  FLEXIBLE    \M>   RIGID  CONSTITUTIONS 

world  were  too  huge  for  average  virtue  to  resist.  The 
moral  forces  which  had  enabled  the  Roman  Constitution 
to  work  in  spite  of  its  extraordinary  complexity,  and  to 
live,  in  spite  of  the  risks  to  which  its  own  nature  exposed 
it,  were  now  fatally  enfeebled.  These  abuses  of  power 
on  the  one  hand,  and  on  the  other  hand  the  deadlocks 
which  the  system  of  checks  caused,  grew  more  frequent 
and  serious.  Each  successive  wrench  which  the  machine 
received  became  more  violent,  because  neither  faction 
had  patriotism  enough  to  try  to  ease  them  off,  and  so 
break  the  force  of  the  shock.  From  the  beginning  of 
the  Republic  the  chief  danger  had  lain  in  the  immense 
powers  vested  in  the  magistrates.  These  powers  had 
been  necessary,  because  the  State  was  constantly  ex- 
posed to  attacks  from  without ;  and  nothing  but  the 
sense  of  devotion  to  the  interests  of  the  State  had  con- 
trolled the  party  spirit  which  rages  more  fiercely  within 
the  walls  of  a  city  than  it  does  in  a  large  and  scattered 
community.  Now  that  Rome  had  vast  dominions  to 
rule,  and  now  that  her  frontiers  extended  to  the  very 
verge  of  civilization,  involving  her  in  long  wars  with 
great  monarchies  or  groups  of  tribes  on  those  frontiers, 
large  powers  had  to  be  entrusted  to  military  chiefs,  and 
entrusted  for  long  periods.  Thus  the  Republican  con- 
stitution fell  through  the  very  faults  which  had  always 
lain  deep  in  its  bosom,  though  an  over-mastering  patriot- 
ism had  in  earlier  days  kept  them  harmless. 

It  is  never  easy,  in  studying  the  history  of  an  institu- 
tion, to  determine  how  much  of  its  success  or  its  failure 
is  due  to  its  own  character,  how  much  to  the  conditions, 
external  and  domestic,  in  the  midst  of  which  it  has  to 
work.  The  fortunes  of  the  Roman  Constitution  would 
doubtless  have  been  different  had  Rome  been  less 
pressed  by  foreign  enemies  in  her  earlier  days,  or  had 
she  been  less  of  a  conquering  power  in  her  later.  So 
too  it  is  hard  to  compare  States  so  different  as  Rome — 
whose  Constitution  was  always  that  of  a  City,  and  failed 
to  widen  itself  so  as  to  become  a  Constitution  for  Italy — 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  163 

and  England,  whose  Constitution  has  always  since  the 
days  of  Ecghbert  and  Alfred  been  that  of  a  large  and 
originally  a  rural  and  scattered  community.  If,  however, 
the  comparison  is  attempted,  we  may  observe  that  Eng- 
land never,  after  the  fourteenth  century,  recognized 
such  vast  powers  in  the  Crown  (whether  in  the  Crown 
personally  or  as  exercised  by  its  Ministers)  as  Rome 
granted  to  her  magistrates.  In  the  sphere  of  public 
law  England  has  applied  more  successfully  than  Rome 
did  the  conception  of  the  inviolability  of  the  rights  of 
the  citizen  as  against  the  organs  of  the  State,  although 
that  conception  is  itself  Roman.  With  all  their  legal 
genius  the  Romans  were  too  much  penetrated  by  the 
idea  of  the  necessary  amplitude  of  State  power  to  fix 
just  limits  to  the  action  of  the  Executive.  When  it  was 
necessary  to  provide  for  checking  a  magistrate,  they  set 
up  another  magistrate  to  do  it,  instead  of  limiting  magis- 
terial powers  by  statute.  Nor  did  they  ever  succeed  as 
the  English  have  done  in  disengaging  the  judicial  from 
the  executive  department  of  government.  In  both  these 
respects  part  of  the  merits  of  the  English  Constitution 
may  be  ascribed  to  Norman  feudalism,  whose  precise 
definition  of  the  respective  rights  of  lord  and  vassal — all 
the  lords  but  one  being  also  vassals,  and  the  greater 
vassals  being  also  lords — helped  to  form  and  imprint  deep 
the  idea  that  powers,  however  strong  within  a  definite 
sphere,  may  be  strictly  confined  to  that  sphere,  and  that 
the  limits  of  the  sphere  are  fit  matter  for  judicial  deter- 
mination. Perhaps  the  existence  in  the  clergy  of  a  large 
class  of  men  enjoying  specific  immunities  the  exact 
range  of  which  had  to  be  settled,  and,  where  possible, 
judicially  settled,  may  have  also  contributed  to  train  this 
habit  of  mind.  The  extent  to  which  England,  favoured 
no  doubt  by  her  insular  position,  was  able  to  secure 
domestic  freedom  while  leaving  a  large  discretionary 
authority  to  the  Crown,  is  usually  credited  to  the  rise 
of  the  House  of  Commons  and  the  vigilance  of  its  con- 
trol.    But  much  is  also  to  be  ascribed  to  that  precise 


164  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

definition  of  the  rights  of  the  individual  which  has  made 
life  and  property  secure  from  injury  on  the  part  of  the 
State,  to  the  habit  of  holding  officials  liable  for  acts  done 
in  excess  of  their  functions,  and  to  that  ultimate  detach- 
ment of  the  judiciary  from  the  influence  of  the  Crown 
which  has  enabled  the  individual  to  secure  by  legal  pro- 
cess the  enforcement  of  his  rights.  These  principles  have 
sunk  deep  into  the  mind  of  the  nation,  and  have  been  of 
the  utmost  service  in  forming  the  habits  of  thought  and 
action  by  which  free  constitutions  have  to  be  worked. 
They  are  just  as  strong  as  if  they  were  embodied  in  a 
Rigid  Constitution,  instead  of  being  legally  at  the  mercy 
of  Parliament.  But  that  is  because  they  have  centuries 
of  tradition  behind  them,  and  because  the  English  are 
a  people  who  respect  tradition  and  have  been  trained  to 
appreciate  the  value  of  the  principles  which  their  ances- 
tors established. 

VIII.    Capacity   of   Constitutions   for    Territorial 
Expansion. 

One  point  more  remains  to  be  mentioned  before  we 
quit  constitutions  of  the  Flexible  type,  viz.  their  suit- 
ability to  a  State  which  is  expanding  its  territory  and  tak- 
ing in  other  communities  whether  by  conquest  or  by 
treaty. 

Such  constitutions  seem  especially  well  suited  to  coun- 
tries which  are  passing  through  periods  of  change, 
whether  internal  or  external.  When  new  classes  of  the 
population  have  to  be  admitted  to  share  in  political 
power,  or  when  the  inhabitants  of  newly-acquired  terri- 
tories have  to  be  taken  in  as  citizens,  this  is  most  quickly 
and  easily  effected  by  the  action  of  the  ordinary  legis- 
lature. Both  Rome  and  England  availed  themselves  of 
this  flexibility  in  the  earlier  stages  of  their  growth. 
England,  itself  created  as  a  State  by  the  expansion  of 
the  West  Saxons,  enlarged  herself  to  include  Wales 
with  no  disturbance  of  her  former  Constitution,  and 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  165 

similarly  fused  herself  with  Scotland  in  1707  and  with 
Ireland  in  1800,  in  both  cases  altering  the  Constitution 
of  the  enlarged  State  no  further  than  by  the  admission 
of  additional  members  to  the  two  Houses  of  Parliament, 
and  by  the  suppression  of  certain  offices  in  the  smaller 
kingdoms.  The  ease  with  which  the  earlier  expansions 
were  effected  may  be  attributed  to  the  fact  that  in 
mediaeval  times  the  prominence  of  the  king  made  the 
submission  of  any  tribe  or  territory  to  him  carry  with 
it  the  incorporation  of  that  tribe  or  territory  into  his  for- 
mer dominions.  The  popular  assembly  of  a  community, 
such  as  were  the  South  Saxons,  for  instance,  sank  into 
a  secondary  place  as  soon  as  the  king  was  head  of  the 
South  Saxons  as  well  as  of  the  West  Saxons,  for  the 
council  of  the  united  people  which  he  summoned  and 
over  which  he  presided  became  the  national  assembly 
for  all  his  subjects.  In  later  times,  though  Scotland  and 
Ireland  had  their  separate  Parliaments,  these  could  be 
readily  united  with  that  of  England,  because  in  all  three 
countries  the  popular  House  was  representative.  Here, 
however,  England  has  stopped.  The  vast  dominions 
which  she  possesses  beyond  the  oceans,  while  legally 
subject  to  her  Crown  and  Parliament,  have  not  been 
brought  into  the  constitutional  scheme  of  the  mother- 
land. Indeed  they  could  hardly  be  brought  in  without 
a  reconstruction  of  the  present  frame  of  government, 
which  would  probably  have  to  be  effected  by  the  estab- 
lishment of  a  Rigid  Constitution. 

Similarly  the  Roman  State  had  its  first  beginnings  in 
the  union  of  neighbouring  tribes,  whose  popular  assem- 
blies coalesced  into  one  assembly.  As  time  went  on, 
the  flexibility  of  the  constitution  permitted  the  extension 
of  political  rights  to  a  number  of  communities  which  had 
lain  outside  the  old  Roman  territory.  But  the  process 
presently  stopped  (so  far  as  effective  political  expansion 
was  concerned),  because  the  representative  system  had 
not  yet  been  invented.  When  after  the  great  revolt  of 
the  Allies  in  b.  c.  90  Rome  was  compelled  to  grant  full 


166  FLEXIBLE  AND  h'Uill)   CONSTITl  TIONS 

citizenship  to  a  large  number  of  Italian  communities,  she 
did  not  take  what  moderns  might  think  the  obvious 
course  of  creating  a  representative  assembly  to  which 
these  allied  communities  might  send  elected  delegates, 
but  merely  distributed  the  new  citizens  among  her  old 
tribes,  an  expedient  which  so  far  improved  the  position 
of  the  Allies  that  they  became  legally  equal  to  Roman 
citizens,  and  acquired  thereby  various  privileges  and 
exemptions,  but  which  extended  to  them  practically  no 
share  in  the  government,  since  few  could  not  come  to 
Rome  to  give  their  votes  in  the  assembly  of  the  people. 
It  may  well  have  been  that  neither  the  oligarchs  nor  the 
leaders  of  the  so-called  popular  party  at  Rome  were 
willing  to  resign  a  substantial  part  of  the  power  of  the 
inhabitants  of  the  City,  with  the  opportunities  of  bribing 
and  being  bribed,  in  exchange  for  the  primacy  of  a 
Federal  or  quasi-Federal  Italian  republic.  But  that  the 
notion  of  a  representative  assembly  had  not  crossed 
men's  minds  appears  from  the  circumstance  that  the 
Italian  Allies  themselves,  when  in  the  course  of  their 
struggle  they  set  up  a  rival  government,  merely  repro- 
duced the  general  lines  of  the  Roman  constitution,  and 
did  not  create  any  representative  council,  excellently  as 
it  might  have  served  their  purpose.  So  strong  was  the 
influence  of  the  idea  of  the  city  community  in  the  ancient 
world,  and  (it  may  be  added)  so  little  power  of  invention 
do  mankind  display  in  the  sphere  of  political  institutions. 
When  an  expanding  State  absorbs  by  way  of  treaty 
other  communities  already  enjoying  a  government  more 
or  less  constitutional,  the  process  now  usually  takes  the 
form  of  creating  a  Federation,  and  a  Federation  almost 
necessarily  implies  a  Rigid  Constitution.  Cases  where 
the  Flexible  Constitution  of  one  State  is  stretched  to 
take  in  another  (as  the  Constitution  of  England  was 
stretched  to  take  in  Scotland)  are  rare.  The  ancient 
Romano-Germanic  Empire  had  a  Flexible  Constitution, 
which,  already  in  an  advanced  stage  of  decay,  was  ex- 
tinguished by  Napoleon.     When  it  was  desired  to  re- 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  167 

establish  a  German  Empire  out  of  a  number  of  prac- 
tically independent  States,  this  had  to  be  done  by  the 
creation  of  a  federal  system  under  a  Rigid  Constitution. 
No  similar  device  was  required  in  the  case  of  Italy,  be- 
cause the  communities  which  united  themselves  to  the 
kingdom  of  Sardinia  between  1859  and  1871  had  not 
theretofore  enjoyed  constitutional  government,  had  just 
dismissed  their  whilome  sovereigns,  were  all  eager  for 
union,  and  in  their  eagerness  for  union  cared  but  little 
for  the  maintenance  of  any  local  rights. 

IX.    The  Origin  of  Rigid  Constitutions. 

We  may  now  pass  on  to  examine  the  other  type  of 
constitution,  that  for  which  I  have  suggested  the  name 
Rigid,  the  specific  character  whereof  resides  in  the  fact 
that  every  constitution  belonging  to  it  enjoys  an  autho- 
rity superior  to  the  authority  of  the  other  laws  of  the 
State,  and  can  be  changed  only  by  a  method  different 
from  that  whereby  those  other  laws  are  enacted  or 
repealed.  This  type  is  younger  than  the  Flexible  type. 
The  latter  goes  back  to  the  very  beginning  of  organized 
political  societies,  being  the  first  form  which  the  organi- 
zation of  such  societies  took.  Rigid  Constitutions,  on 
the  other  hand,  mark  a  comparatively  advanced  stage 
in  political  development,  when  the  idea  of  separating 
fundamental  laws  from  other  laws  has  grown  familiar, 
and  when  considerable  experience  in  the  business  of 
government  and  in  political  affairs  generally  has  been 
accumulated.  Thus  they  have  during  the  last  hundred 
years  been  far  more  in  favour  than  constitutions  of  the 
Flexible  type. 

In  Europe  they  exist  in  every  constitutional  country 
except  the  United  Kingdom,  Hungary,  and  Italy.  There 
are  none  in  the  Asiatic  continent,  but  Asia,  the  cradle 
of  civilization,  possesses  no  constitutional  self-governing 
State  whatever,  except  Japan,  the  Constitution  of  which, 
established  in  1889,  bears  some  resemblance  to  that  of 


168  FLEXIBLE  AND  RIGID  OONBflTVTlONS 

the  German  Empire.  America,  as  a  new  continent,  is 
appropriately  full  of  them.  The  Republic  of  the  United 
States  has  not  only  presented  the  most  remarkable  in- 
stance of  this  type  in  the  modern  world,  but  has  by  its 
success  become  a  pattern  which  other  republics  have 
imitated,  just  as  most  modern  States  in  the  Old  World 
took  England  for  their  model  when  they  established, 
during  the  nineteenth  century,  governments  more  or 
less  free.  The  Constitutions  of  all  the  forty-five  States 
of  the  Union  are  Rigid,  being  not  alterable  by  the  legis- 
latures of  those  States  respectively.  This  is  also  true  of 
the  Constitution  of  the  Dominion  of  Canada,  which  is 
alterable  only  by  the  Imperial  Parliament.  The  Consti- 
tutions of  the  seven  Canadian  Provinces  might,  so  far  as 
their  legislatures  are  concerned,  be  deemed  Flexible, 
being  (except  as  respects  the  office  of  Lieutenant-Gover- 
nor) alterable  by  ordinary  provincial  statutes,  but  as  all 
Provincial  statutes  are  subject  to  a  Dominion  veto,  they 
are  not  within  the  sole  power  of  the  legislatures.  Mexico 
and  the  five  republics  of  Central  America,  together  with 
the  nine  republics  of  South  America,  have  all  adopted 
Constitutions  which  their  legislatures  have  not  received 
power  to  change.  Africa  is  the  most  backward  of  the 
continents,  but  she  has  in  the  Orange  Free  State  a  tiny 
republic  living  under  a  Rigid  Constitution.  It  has  been 
contended  that  the  Constitution  of  the  South  African 
Republic  (Transvaal)  is  referable  to  the  same  category, 
but  it  is  really  de  iitrc,  and  it  has  always  been  treated  de 
facto,  as  being  a  Flexible  Constitution  1 .  The  Constitu- 
tions of  the  Australasian  colonies  present  legal  questions 
of  some  difficulty,  owing  to  the  way  in  which  the  imperial 
Acts  creating  or  confirming  them  have  been  drawn.  So 
far  as  the  method  of  changing  these  Constitutions  has 
been  prescribed  by  statutes  of  the  colonies  in  which 
they  exist,  it  would  appear  that  each  can  also  be  changed 
by  the  legislature  of  the  colony.  Where  those  methods, 
however,  are  prescribed  by  the  British  Parliament,  or  by 

1  See  Essay  VII,  p.  378. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  169 

instruments  issuing  from  the  Crown,  the  point  is  more 
doubtful,  and  would  need  a  fuller  discussion  than  it  cau 
receive  here.  Questions,  however,  touching  the  rela- 
tions of  a  legally  subordinate  to  a  legally  supreme  legis- 
lature lie  in  a  different  plane,  so  to  speak,  from  that  with 
which  we  are  here  concerned :  and  we  may  say  that  if 
these  colonial  constitutions  are  regarded  solely  as  re- 
spects the  legislatures  of  the  colonies  themselves,  they 
are  referable  to  the  Flexible  type.  As  to  the  new  Federal 
Constitution  of  Australia  there  is  no  doubt  at  all.  It  is 
Rigid  *,  for  any  alteration  in  it  requires  a  majority  of  the 
States  and  a  majority  of  the  direct  popular  vote.  All  the 
acts  of  every  British  colony  are  subject  to  a  power  of 
disallowance  by  the  Governor  or  the  Crown,  but  (al- 
though it  is  sometimes  provided  that  constitutional  acts 
shall  be  '  reserved  '  for  the  pleasure  of  the  Crown)  this 
power  is  not  confined  to  acts  changing  the  constitution, 
conformably  to  the  English  habit  of  drawing  little  dis- 
tinction between  constitutional  and  other  enactments. 

All  the  above-mentioned  constitutions  are  products  of 
the  last  century  and  a  quarter,  and  it  is  doubtful  whether 
there  existed  in  a.  d.  1776  any  independent  State  the 
constitution  of  which  the  ruling  authority  of  that  State 
could  not  have  changed  in  the  same  way  in  which  it 
changed  its  ordinary  laws.  The  Swiss  Confederation 
does  not  come  into  question,  for  that  Confederation  was, 
until  the  French  laid  hands  on  it  in  the  last  years  of  the 
eighteenth  century,  a  League  of  States  rather  than  a 
State,  and  could  not  be  said  to  have  any  constitution  in 
the  proper  sense,  not  to  add  that  the  republics  of  which 
the  league  consisted  could  alter  the  terms  of  their  league 
in  the  same  way  in  which  they  had  formed  it.  The  same 
remark  applies  to  the  confederation  of  the  seven  United 
Provinces  of  the  Netherlands. 

The  beginnings  of  Rigid  Constitutions  may,  however, 

1  See  as  to  this  Constitution  Essay  VIII,  p.  39*.  As  to  the  Constitutions  of  the 
several  Australian  and  other  British  colonies,  reference  may  be  made  to  the  book 
of  the  late  Sir  Henry  Jenkyns,  entitled  British  Rule  and  Jurisdiction  beyond  the 
Seas,  the  publication  of  which  is  announced  for  a  very  early  date. 


170  FLEXIBLE  ASD  RIGID   CONSTITl  T10N8 

be  traced  back  to  the  seventeenth  century.  The  first 
settlers  in  the  British  colonies  in  North  America  lived 
under  governments  created  by  royal  charters  which  the 
colonial  legislatures  could  not  alter,  and  thus  the  idea  of 
an  instrument  superior  to  the  legislature  and  to  the  laws 
it  passed  became  familiar  1.  In  one  colony  (Connecticut) 
the  settlers  drew  up  for  themselves  in  1638  a  set  of  rules 
for  their  government,  called  the  Fundamental  Orders. 
These  Orders,  developed  subsequently  into  a  royal  char- 
ter, were  really  a  rudimentary  constitution.  And  almost 
contemporaneously  the  conception  appeared  in  England 
during  the  Civil  War.  The  Agreement  of  the  People, 
presented  to  the  Long  Parliament  in  1647,  contains  in 
outline  a  Frame  of  Government  for  England  which  was 
meant  to  stand  above  Parliament  and  be  not  changeable 
by  it.  So  Oliver  Cromwell  sought  by  his  Instrument  of 
Government,  promulgated  in  1653,  to  create  a  Rigid 
Constitution,  some  at  least  of  whose  provisions  were  to 
be  placed  beyond  the  reach  of  Parliament,  and  indeed 
apparently  to  be  altogether  unchangeable.  But  his  own 
Parliament  refused  to  recognize  any  part  of  it  as  outside 
their  right  of  interference  2. 

From  this  rapid  geographical  survey  we  may  now 
return  to  examine  the  circumstances  under  which  con- 
stitutions of  this  type  arise.  Their  establishment  is  usu- 
ally due  to  one  or  more  of  the  four  following  motives  : — 

(1)  The  desire  of  the  citizens,  that  is  to  say,  of  the 
part  of  the  population  which  enjoys  political  rights,  to 
secure  their  own  rights  when  threatened,  and  to  restrain 
the  action  of  their  ruler  or  rulers. 

,(2)  The  desire  of  the  citizens,  or  of  a  ruler  who  wishes 
to  please  the  citizens,  to  set  out  the  form  of  the  pre- 
existing system  of  government  in  definite  and  positive 
terms  precluding  further  controversy  regarding  it. 

1  Observations  on  this  topic  may  be  found  in  the  author's  American  Common- 
wealthy  chap,  xxxvii. 

a  These  documents  are  printed  in  Dr.  S.  R.  Gardiner's  Constitutional  Docu- 
ments of  the  Puritan  Resolution.  A  concise  account  of  the  Instrument  maybe 
found  in  Mr.  Goldwin  Smith's  United  Kingdom*  vol.  i.  pp.  6os-8. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  171 

(3)  The  desire  of  those  who  are  erecting  a  new  poli- 
tical community  to  embody  the  scheme  of  polity  under 
which  they  propose  to  be  governed,  in  an  instrument 
which  shall  secure  its  permanence  and  make  it  compre- 
hensible by  the  people. 

(4)  The  desire  of  separate  communities,  or  of  distinct 
groups  or  sections  within  a  large  (and  probably  loosely 
united)  community,  to  settle  and  set  forth  the  terms 
under  which  their  respective  rights  and  interests  are  to 
be  safe-guarded,  and  effective  joint  action  in  common 
matters  secured,  through  one  government. 

Of  these  four  cases,  the  two  former  arise  where  an 
existing  State  changes  its  constitution.  The  two  latter 
arise  where  a  new  State  is  created  by  the  gathering 
of  individuals  into  a  community,  or  by  the  union  of 
communities  previously  more  or  less  separate  into  one 
larger  community,  as  for  instance  by  the  forming  of  a 
Federation. 

Note  further  that  Rigid  Constitutions  arise  in  some 
one  of  four  possible  ways. 

1.  They  may  be  given  by  a  monarch  to  his  subjects 
in  order  to  pledge  himself  and  his  successors  to  govern 
in  a  regular  and  constitutional  manner,  avoiding  former 
abuses.  Several  modern  European  constitutions  have 
thus  come  into  being,  of  which  that  of  the  Kingdom  of 
Prussia,  granted  by  King  Frederick  William  the  Fourth 
in  1850,  is  a  familiar  example.  The  Statuto  or  Funda- 
mental Law  of  the  Kingdom  of  Sardinia,  now  expanded 
into  the  Kingdom  of  Italy,  was  at  one  time  deemed 
another  instance.  It  is  now,  however,  held  to  be  a  Flexi- 
ble Constitution.  Magna  Charta  would  have  been  a 
fragment  of  such  a  constitution  had  it  been  legally  placed 
out  of  the  possibility  of  any  change  being  made  in  it 
by  the  Great  Council,  then  the  supreme  legislature  of 
England,  but  it  was  enacted  by  the  king  in  his  Great 
Council,  and  has  always  been  alterable  by  the  same 
authority.  The  Charte  Constitutionnelle  for  France  issued 
by  Louis  the  Eighteenth  in  1814,  and  renewed  in  an 


172  FLEXIBLE  A.\l>   A'lUID   CONSTITUTIONS 

altered  form  on  the  choice  of  Louis  Philippe  as  king  in 
1830,  and  the  Constitutions  granted  by  their  respective 
kings  to  Spain  and  to  Portugal,  are  similar  instances. 

2.  They  may  be  created  by  a  nation  for  itself  when 
it  has  thrown  off  (or  been  released  from)  its  old  form  of 
government,  and  desires  to  create  another  entirely  dc 
novo.  The  various  Constitutions  of  the  various  French 
Republics  from  1790  downwards  are  instances,  as  is  the 
Constitution  of  the  Orange  Free  State  *  and  the  present 
(a.  d.  1901)  Constitution  of  Brazil.  To  this  category  also 
belong  the  Constitutions  of  the  original  thirteen  States 
of  the  American  Union.  Two  of  these  States,  however, 
were  content  to  retain  the  substance  of  the  charter-con- 
stitutions under  which  they  had  lived  as  British  Colonies, 
merely  turning  them  into  State  constitutions,  with  noth- 
ing but  the  Confederation  above  them,  that  Confedera- 
tion being  then  a  mere  League  and  not  a  National 
Government.  The  Constitution  of  the  Austrian  part  of 
the  Austro-Hungarian  monarchy  may  also  be  referred  to 
this  category.  It  consists  of  five  Fundamental  Laws, 
enacted  in  1867,  and  alterable  by  the  legislature  only 
in  a  specially  prescribed  manner. 

3.  They  may  be  created  by  a  new  community,  not 
theretofore  a  nation,  when  it  deliberately  and  formally 
enters  upon  organized  political  life  as  a  self-governing 
State,  whether  or  no  as  also  a  member  of  any  larger 
political  body.  Such  are  the  Constitutions  of  the  States 
of  the  American  Union  formed  since  1790.  Such  was 
the  original  Constitution  of  Belgium,  a  country  which 
had  been  previously  a  part  of  the  Kingdom  of  Holland. 
Such  is  the  Constitution  of  the  Dominion  of  Canada, 
though  it  is  a  peculiar  feature  of  this  instrument — arid 
the  same  is  true  of  the  Constitutions  of  all  the  self- 
governing  British  Colonies — that  it  has  been  created 
not  by  the  community  which  it  regulates  but  by  an 
external  authority,  that  of  the  Parliament  of  the  United 
Kingdom,  in  a  statute  of  A.  n.  1867.     Being  unchange- 

»  See  Essay  VII,  p.  361. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  173 

able  by  the  Dominion  Legislature,  it  is  a  Rigid  Con- 
stitution within  the  terms  of  our  definition,  although 
changeable,  like  any  other  statute,  by  the  British  Par- 
liament. The  new  Federal  Constitution  of  Australia 
belongs  to  the  same  class  and  had  a  like  origin  1. 

4.  They  may  arise  by  the  tightening  of  a  looser  tie 
which  has  theretofore  existed  between  various  self- 
governing  communities.  When  external  dangers  or  eco- 
nomic interests  have  led  such  communities  to  desire 
a  closer  union  than  treaties  or  federative  agreements 
have  previously  created,  such  communities  may  unite 
themselves  into  one  nation,  and  give  that  new  nation 
a  government  by  means  of  an  instrument  which  is  there- 
after not  only  to  hold  them  together  but  to  provide  for 
their  action  as  a  single  body.  This  process  of  turning  a 
League  of  States  (Staatcnbund)  into  a  Federal  State 
(Bundesstactt)  is  practically  certain  to  create  a  Rigid  Con- 
stitution, for  the  component  communities  which  are  so 
uniting  will  of  course  desire  that  the  rights  of  each  shall 
be  safeguarded  by  interposing  obstacles  and  delays  to 
any  action  tending  to  change  the  terms  of  their  union, 
and  they  will  therefore  place  the  constitution  out  of  the 
reach  of  amendment  by  the  ordinary  legislature.  Cases 
may,  however,  be  imagined  in  which  the  component 
communities  might  be  willing  to  forego  this  safeguard. 
The  Achaean  League  did  so ;  and  its  constitution  was 
therefore  a  flexible  one,  but  then  the  Achaean  League 
can  hardly  be  said  to  have  been  a  single  State  in  the  strict 
sense  of  the  word.  It  was  rather  a  league,  though  a  close 
league,  of  States,  like  the  Swiss  Confederation  in  the 
eighteenth  century. 

The  most  familiar  instances  of  this  fourth  kind  of 
origin  are  the  United  States  of  North  America,  the 
Federation  of  Mexico  (unless  it  be  referred  to  the  second 
class),  and  the  present  Swiss  Confederation.     To  this 

*  As  to  this  Constitution  see  Essay  VIII.  Unlike  the  Constitution  of  Canada, 
it  can  be  amended  by  the  people  of  Australia  without  the  aid  of  the  Imperial 
Parliament. 


174  FLEXIBLE   AXl)    RICH)    C0XSTITVTI0X8 

class  may  also  be  referred  the  very  peculiar  case  of  the 
new  German  Empire,  which  by  two  steps,  in  1866  and  in 
1871,  has  created  itself  out  of  the  pre-existing  Germanic 
Confederation  of  1815,  that  Confederation  having  been 
formed  by  the  decay  into  fragments  of  the  ancient  East 
Prankish  or  German  kingdom,  which  had,  throughout 
the  Middle  Ages,  a  Flexible  Constitution  resembling 
that  of  the  England  or  France  or  Castile  of  the  thirteenth 
century. 

X.    The  Enactment  and  Amendment  of  Rigid 
Constitutions. 

Before  proceeding  to  consider  the  methods  by  which 
these  constitutions  may  be  enacted  and  changed,  it  is 
worth  while  to  suggest  an  explanation  of  their  compara- 
tive recent  appearance  in  history.  Documentary  consti- 
tutions, i.e.  those  contained  in  one  or  several  instruments 
prepared  for  the  purpose,  are  old.  There  were  many 
of  them  in  the  Greek  cities ;  and  efforts  were  some- 
times made  when  they  were  enacted  to  secure  their 
permanence  by  declaring  them  to  be  unchangeable.  But 
in  the  old  days  when  City  States  (and  sometimes  also 
small  Rural  States)  were  ruled  by  Primary  Assemblies, 
consisting  of  all  free  citizens,  there  was  no  authority 
higher  than  the  legislature  that  could  be  found  to  enact 
a  constitution,  seeing  that  the  legislature  consisted  of  the 
whole  body  of  the  citizens.  In  those  days,  accordingly, 
when  it  was  decided  to  give  peculiar  permanence  to  some 
political  arrangement,  so  that  no  subsequent  assembly 
of  the  people  should  upset  it,  two  expedients  were  re- 
sorted to.  One  was  to  make  all  the  leading  men,  perhaps 
the  whole  people,  swear  solemnly  to  maintain  it,  and 
thereby  to  bring  in  the  deities  of  the  States  as  co-enact- 
ing or  at  least  protecting  and  guaranteeing  parties. 
Tradition  attributed  this  expedient  to  Lycurgus  at 
Sparta.  The  other  was  to  provide  in  the  law  intended  to 
be  Fundamental  that  no  proposal  to  repeal  it  should  evef 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  175 

be  entertained,  or  to  declare  a  heavy  penalty  on  the 
audacious  man  who  should  make  the  proposal.  The 
objection  to  both  these  expedients  was  that  they  de- 
barred any  amendment,  however  desirable,  and  however 
generally  desired.  Hence  they  were  in  practice  little 
regarded,  though  the  exceptionally  pious  or  supersti- 
tious Spartans  were  deemed  to  be  largely  deterred  from 
governmental  changes  by  the  fear  of  divine  disapproval. 
Moreover,  the  second  of  the  above-named  devices  or 
barriers  could  be  easily  turned  by  proposing  to  repeal, 
not  the  Fundamental  law  itself,  but  the  prohibition  and 
the  penalty.  These  having  been  repealed — and  of  course 
the  proposal  would  not  be  made  unless  its  success  were 
pretty  well  assured — the  Fundamental  Law  would  then 
itself  be  forthwith  repealed.  It  must,  however,  be  added 
that  even  if  the  Greek  cities  had  adopted  what  seems  to 
us  the  obvious  plan  of  requiring  a  certain  majority  of 
votes  (say  two-thirds)  for  a  change  in  the  Fundamental 
Law,  or  had  required  it  to  be  passed  by  four  Assemblies 
in  succession  at  intervals  of  three  months,  one  may  doubt 
whether  such  provisions  would  have  restrained  a  ma- 
jority in  communities  which  were  small,  excitable,  and 
seldom  legally-minded. 

Those  who  have  suggested  that  the  United  Kingdom 
ought  to  embody  certain  parts  of  what  we  call  the 
British  Constitution  in  a  Fundamental  Statute  (or  Sta- 
tutes) and  to  declare  such  a  statute  unchangeable  by  Par- 
liament, or  by  Parliament  acting  under  its  ordinary 
forms,  seem  to  forget  that  the  Act  declaring  the  Funda- 
mental Statute  to  be  Fundamental  and  unchangeable  by 
Parliament  would  itself  be  an  Act  like  any  other  Act, 
and  could  be  repealed  by  another  ordinary  statute  in 
the  ordinary  way.  All  that  this  contrivance  would  obtain 
would  be  to  interpose  an  additional  stage  in  the  process 
of  abolition  or  amendment,  and  to  call  the  attention  both 
of  the  people  and  the  legislature  in  an  emphatic  way  to 
the  fact  that  a  very  solemn  decision  was  being  reversed. 
Some  may  think  that  such  a  security,  if  imperfect,  would 


176  FLEXIBLE  AND  RIGID   C0SSTITUTI0S8 

be  worth  having.  The  restraint  imposed  would,  however, 
be  a  moral  not  a  legal  one  *. 

A  constitution  placed  out  of  the  power  of  the  legis- 
lature may  or  may  not  be  susceptible  of  alteration  in 
a  legal  manner.  Sometimes  no  provision  has  been  made, 
when  it  was  first  established,  for  any  change  whatever. 
There  are  instances  of  this  among  constitutions  granted 
by  a  monarch  to  his  subjects — such  seems  to  be  to-day 
the  case  in  Spain — but  in  cases  of  this  kind  it  might  pos- 
sibly be  held  that  the  grantor  implicitly  reserved  the 
power  to  vary  his  grant,  as  there  may  not  have  been 
expressed  in  the  document,  and  need  not  be,  any  bilateral 
obligation.  As  already  observed,  the  Constitution  of  the 
present  Kingdom  of  Italy  was  originally  granted  to  the 
Kingdom  of  Sardinia  by  King  Charles  Albert  in  1848 ; 
and  it  was  for  a  long  time  held  that  the  power  to  change 
it  resided  in  the  Crown  only.  It  was  extended  by  a  suc- 
cession of  popular  votes  (1859  to  1871)  to  the  rest  of 
Italy,  and  some  conceive  that  this  sanction  makes  at 
least  its  fundamental  parts  unchangeable.  But  the  view 
that  it  is  alterable  by  legislation  has  prevailed,  and  it  has 
in  fact  been  so  altered  in  some  points.  The  Chartc  Con- 
stitutionnelle  granted  by  Louis  XVIII,  under  which  the 
government  of  France  was  carried  on  for  many  years, 

1  Soon  after  the  above  lines  were  written,  the  point  they  deal  with  came  up  in 
Parliament  in  a  practical  form.  In  the  debate  on  the  Irish  Home  Rule  Bill  of 
1886  the  question  emerged  whether  Parliament  could  in  constituting  a  legislature 
for  Ireland  and  assigning  to  that  legislature  a  certain  sphere  of  action  legally  de- 
bar itself  from  recalling  its  grant  or  from  legislating,  upon  matters  falling  within 
that  sphere,  over  the  head  of  the  Irish  legislature.  It  was  generally  agreed  by 
lawyers  that  Parliament  could  not  so  limit  its  own  powers,  and  that  no  statute  it 
might  pass  could  be  made  unchangeable,  or  indeed  could  in  any  way  restrict  the 
powers  of  future  Parliaments. 

Upon  the  general  question  whether  Parliament  could  so  enact  any  new  Consti 
tution  for  the  United  Kingdom  as  to  debar  itself  from  subsequently  repealing  that 
Constitution,  it  may  be  suggested,  for  the  consideration  of  those  who  relish  techni- 
calities, that  Parliament  could,  if  so  disposed,  divest  itself  of  its  present  authority 
by  a  sort  of  suicide,  »*.*.  by  repealing  all  the  statutes  under  which  it  is  now  suin- 
moned,  and  abolishing  the  common-law  right  of  the  Crown  to  summon  it,  and 
thereupon  causing  itself  to  be  forthwith  dissolved,  having  of  course  first  provided 
for  summoning  such  an  assembly,  or  assemblies,  as  the  new  Constitution 
created.  There  would  then  be  no  legal  means  of  summoning  another  Parliament 
of  the  old  kind,  and  the  new  Constitution,  whatever  it  was,  would  therefore  not 
be  liable  to  be  altered  save  in  such  manner  as  its  own  terms  provided. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  177 

was  intended  to  create  a  sort  of  parliamentary  govern- 
ment, in  the  first  instance  by  way  of  gift  from  the  sove- 
reign, but  afterwards,  under  Louis  Philippe,  by  way  of  a 
compact,  or  kind  of  covenant  between  monarch  and  peo- 
ple. The  fact  that  it  contained  no  provisions  for  altera- 
tion, having  apparently  been  designed  to  last  for  ever, 
worked  against  it ;  and  the  discontents  of  France  may 
have  ripened  the  faster  because  no  constitutional  method 
had  been  provided  for  appeasing  them  by  changes  in  the 
machinery  of  government.  Nothing  human  is  immortal ; 
and  constitution-makers  do  well  to  remember  that  the 
less  they  presume  on  the  long  life  of  their  work  the 
longer  it  is  likely  to  live. 

The  Constitutions  of  Norway  (created  in  1814,  but 
subsequently  altered)  and  of  Greece  (created  in  1864) 
declare  that  amendments  are  to  be  confined  to  matters 
not  fundamental,  but  omit  to  specify  the  matters  falling 
under  that  description. 

The  existing  Constitution  of  France  is  so  far  legally 
unalterable  that  no  proposition  for  abolishing  the  re- 
publican form  of  government  can  be  entertained.  If  it 
be  asked,  What  is  a  republican  form?  one  may  answer 
that  if  ever  the  question  has  to  be  answered,  it  will 
be  not  so  much  by  the  via  inn's  as  by  the  via  facti.  So 
also  the  Constitution  of  the  United  States  is  in  one 
respect  virtually,  if  not  technically,  unchangeable.  No 
State  can  without  its  own  consent  be  deprived  of  its 
equal  representation  in  the  Senate.  As  no  State  is  ever 
likely  to  consent  to  such  a  change,  the  change  may  be 
deemed  legally  unattainable ;  and  that  any  State  against 
which  it  was  attempted  to  enforce  a  reduction  of  its  re- 
presentation effected  by  constitutional  amendments  to 
which  it  had  refused  assent  would  be  legally  justified 
in  considering  itself  out  of  the  Union.  In  accordance 
with  this  American  precedent,  the  new  Constitution  of 
Australia  declares  that  no  State  can  have  its  propor- 
tionate representation  in  the  Parliament,  or  the  mini- 
mum number  of  its  representatives  in  the  House  of 
13 


ITS  FLEXIBLE  AND   RIGID   CONSTITUTIONS 

Representatives,  reduced  without  the  approval  of  a  ma- 
jority of  its  electors  voting  on  a  constitutional  amend- 
ment l. 

Among  the  methods  by  which  constitutions  of  the 
Rigid  type  make,  as  they  now  almost  invariably  do, 
provision  for  their  own  amendment,  four  deserve  to  be 
enumerated. 

The  first  is  to  give  the  function  to  the  Legislature, 
but  under  conditions  which  oblige  it  to  act  in  a  special 
way,  different  from  that  by  which  ordinary  statutes  are 
passed.  There  may,  for  instance,  be  required  a  fixed 
quorum  of  members  for  the  consideration  of  amend- 
ments. Belgium  fixes  this  quorum  at  two-thirds  of  each 
House,  while  also  requiring  a  two-thirds  majority  of 
each  House  for  a  change.  Bavaria  requires  a  quorum  of 
three-fourths  of  the  members  of  each  House ;  Rumania 
one  of  two-thirds.  Or  again — and  this  is  a  very  frequent 
provision,  found  even  when  that  last-mentioned  is  want- 
ing— a  specified  minimum  majority  of  votes  may  be  re- 
quired to  carry  an  amendment.  Sometimes  this  majority 
is  three-fourths  (as  in  Greece  and  Saxony,  and  in  the 
German  Empire  for  a  vote  of  the  Federal  Council)  :  more 
frequently  it  is  two-thirds,  as  in  the  United  States  Con- 
gress, in  the  Mexican  Chambers,  in  Norway,  Belgium, 
Rumania,  Servia,  Bulgaria.  Another  plan  is  to  require 
a  dissolution  of  the  Legislature,  so  that  the  amendments 
carried  in  one  session  may  come  under  the  judgement  of 
the  electors  at  a  general  election,  and  be  thereafter 
passed,  or  rejected,  by  the  newly  chosen  Legislature. 
This  arrangement,  often  combined  with  the  two-thirds 
majority  rule,  prevails  in  Holland,  Norway,  Rumania, 
Portugal,  Iceland,  Sweden  (where  the  amendment  must 
have  been  passed  in  two  ordinary  successive  sessions), 
and  several  other  States,  including  some  of  the  republics 
of  Spanish  America.  It  is  in  substance  an  appeal  to  the 
people  as  well  as  to  their  representatives,  and  therefore 
adds  a  further  guarantee  against  hasty  change.    Finally, 

»  See  Essay  VIII. 


FLEXIBLE   AND   RIGID   CONSTITUTIONS  179 

the  two  Houses  of  the  Legislature  may  sit  together  as 
a  Constituent  Assembly.  Thus  in  France  (Constitution 
of  1875)  when  each  Chamber  has  resolved  that  the  Con- 
stitution shall  be  revised,  the  two  are  for  the  moment 
fused,  and  proceed  to  debate  and  pass  amendments. 
Haiti  (Constitution  of  1899)  has  a  similar  plan,  which, 
oddly  enough,  was  not  borrowed  from  France,  but  is  as 
old  as  1843.  Few  will  suspect  France  of  borrowing  from 
Haiti. 

A  second  plan  is  to  create  a  special  body  for  the  work 
of  revision.  In  the  United  States,  where  a  vast  deal  of 
constitution  making  and  revising  goes  on  in  the  several 
States,  such  a  body  is  called  a  Convention,  and  is  usually 
elected  when  it  is  desired  to  re-draft  the  whole  constitu- 
tion, the  ultimate  approval  of  the  draft  being,  however, 
almost  always  reserved  for  the  people  1.  In  Servia  and 
Bulgaria,  after  amendments  have  been  twice  passed  by 
the  ordinary  Legislature,  a  sort  of  Special  Assembly, 
similarly  elected,  but  twice  as  large,  called  the  Great 
Skuptschina  (in  Servia)  or  Great  Sobranje  (in  Bul- 
garia), receives  and  finally  decides  on  the  proposed 
amendments. 

The  republics  of  Paraguay,  Guatemala,  Honduras, 
Nicaragua,  and  Salvador  also  prescribe  Conventions, 
preceded  in  each  case  by  votes  of  the  Legislature,  such 
votes  usually  requiring  a  two-thirds  majority  2. 

A  third  plan  is  to  refer  the  new  constitution,,  or  the 
amendments  proposed  (if  the  revision  is  partial),  to  a 
number  of  minor  or  local  authorities  for  approval.  This 
course  is  an  obviously  suitable  one  in  a  federation,  and 
has  accordingly  been  adopted  by  the  United  States,  by 
Mexico,  by  Colombia,  by  Switzerland,  and  by  the  new 

1  But  the  Constitution  of  Mississippi  of  1890  was  enacted  by  a  Convention  only 
and  never  submitted  to  the  people.  See  as  to  the  United  States  the  author's 
American  Commonwealth,  ch.  xxxvii. 

2  On  the  whole  subject  of  the  modes  of  amending  constitutions  reference  may 
be  made  to  the  valuable  book  of  my  friend  M.  Charles  Borgeaud,  Professor  at 
Geneva,  Etablissement  et  Revision  des  Constitutions.  See  also  Dareste,  Les  Con- 
stitutions Modernes.  I  owe  to  these  books,  and  especially  to  the  former,  most  of 
the  facts  here  given  regarding  the  minor  States. 


ISO  FLEXIBLE  AND  RIGID    CONSTITUTIONS 

Australian  Commonwealth,  in  all  of  which  the  com- 
ponent States  are  consulted,  the  United  States  requiring 
a  three-fourths  majority  of  States,  Switzerland,  Austra- 
lia, and  Mexico  a  bare  majority.  (Switzerland  and  Aus- 
tralia also  require  a  majority  of  the  citizens  generally.) 
It  is  not,  however,  invariable  in  federal  countries,  for  the 
Argentine  Confederation  entrusts  amendment  to  a  Con- 
vention, following  on  a  three-fourths  majority  vote  of 
the  Legislature,  and  Brazil  (now  a  federal  country) 
leaves  it  to  the  Legislature  alone,  acting  by  a  two-thirds 
majority  in  three  successive  debates.  Neither  is  such 
a  plan  necessarily  confined  to  a  federation,  for  the  exist- 
ing Constitution  of  Massachusetts  was  (in  1780)  sub- 
mitted to  the  Towns  (i.e.  townships)  of  the  State,  acting 
as  communities,  and  enacted  by  the  majority  of  them. 

The  fourth  plan  is  to  refer  amendments  to  the  direct 
vote  of  the  people.  Originating  in  the  New  England 
States  of  America,  where  democracy  earliest  prevailed, 
this  method  has  spread  to  Switzerland  and  to  Australia, 
both  of  which  require  for  alterations  in  the  Funda- 
mental Instrument  a  majority  of  the  electors  voting 
as  well  as  a  majority  of  the  States.  It  prevails  now 
not  only  in  these  two  federations,  but  also  in  the  several 
States  of  the  United  States  (with  very  rare  exceptions). 
A  bare  majority  of  votes  is  sufficient,  except  in  Rhode 
Island,  where  three-fifths  are  required,  and  in  Indiana 
and  Oregon,  which  require  a  majority  of  all  the  qualified 
voters.  The  popular  vote  is  also  in  use  in  the  several 
Cantons  of  Switzerland.  It  was  repeatedly  employed 
in  France  during  the  first  Revolution,  and  again  (under 
the  name  of  plebiscite)  by  Louis  Napoleon  under  the 
Second  Empire. 
V  These  variations  in  the  mode  of  amending  are  in- 
teresting enough  to  deserve  a  few  comments. 

Broadly  speaking,  two  methods  of  amendment  arc 
most  in  use:  that  which  gives  the  function  to  the  Legis- 
lature, usually  requiring  something  more  than  a  bare 
majority,  and  that  which  gives  it  to  the  People,  i.e.  the 


FLEXIBLE  AXD  RIGID   CONSTITUTIONS  181 

qualified  voters.  The  former  of  these  methods  often 
directs  a  dissolution  of  the  Legislature  to  precede  the 
final  vote  on  amendments,  and  in  this  way  secures  for 
the  people  a  means  of  delivering  their  judgement  on 
the  questions  at  issue.  The  latter  method  is,  however, 
a  more  distinct  and  emphatic,  because  a  more  direct,  re- 
cognition of  Popular  Sovereignty;  and  it  has  the  advan- 
tage of  making  the  constitution  appear  to  be  the  work 
of  the  Nation  as  a  whole,  apart  from  faction,  whereas 
in  the  Legislature  it  may  have  been  by  a  party  vote  that 
the  amendments  have  been  carried.  Thus  it  supplies 
the  broadest  and  firmest  basis  on  which  a  Frame  of 
Government  can  rest.  The  Convention  system  is  inter- 
mediate between  the  two  others,  and  has  struck  no  deep 
roots  in  the  Old  World,  while  in  the  United  States  it 
has  been  virtually  superseded  (as  respects  enactment) 
by  that  of  the  direct  Popular  Vote. 

Geographically  regarded,  the  method  of  revision  by 
Legislature  prevails  over  Europe  and  over  most  of 
Spanish  America  (being  in  the  latter  region  sometimes 
combined  with  the  Convention  method).  The  Constitu- 
tion which  has  most  influenced  others  in  Europe  and 
become  a  type  for  them  in  this  respect  is  that  of  Holland 
(1814),  because  it  was  the  earliest  one  established  after 
the  revolutionary  period.  On  the  other  hand,  the  United 
States  (except  the  Federal  Government)  and  the  demo- 
cratic governments  of  the  Swiss  and  Australian  Federa- 
tions are  ruled  by  the  Popular  method.  The  Constitu- 
tion which  has  set  the  type  of  this  method  is  that  of 
Massachusetts  of  1780. 

As  respects  facility  of  change,  it  is  interesting  to  note 
that  the  Constitutions  which  are  most  quickly  and  easily 
altered  are  those  of  Prussia,  which  prescribes  no  safe- 
guard save  that  of  two  successive  votes  separated  by  an 
interval  of  at  least  twenty-one  days,  and  that  of  France, 
which  requires  an  absolute  majority  of  each  House  for 
a  proposal  to  revise,  and  an  absolute  majority  of  the  two 
Houses  sitting  together  for  the  carrying  of  any  amend- 


182  FLEXIBLE  AND   RIGID   CONSTITUTIONS 

ment.  The  omission  of  the  French  Chambers  in  1875  to 
submit  to  the  people  the  constitution  then  framed,  or  to 
provide  for  their  sanction  to  any  future  amendments, 
was  due  to  the  doubt  which  each  party  felt  of  the  result 
of  an  appeal  to  the  nation.  The  Republicans,  though 
able  to  prevent  the  establishment  of  a  monarchical  con- 
stitution by  the  Legislature,  were  not  quite  sure  that 
a  republican  one  would  be  carried  if  submitted  to  a 
popular  vote.  Thus  it  has  come  about  that  France, 
which  went  further  towards  popular  sovereignty  in  1793 
than  any  great  country  has  ever  done,  has  lived  since 
1875  tinder  an  instrument  never  ratified  by  the  people, 
and  which  was  originally  regarded  as  purely  provi- 
sional. 

The  Constitution  which  it  is  most  difficult  to  change 
is  that  of  the  United  States.  It  has  in  fact  never  been 
amended  since  1809,  except  thrice  between  1865  and 
1870,  immediately  after  and  in  consequence  of  the  Civil 
War,  and  then  under  conditions  entirely  abnormal,  be- 
cause some  States  were  under  military  duress. 

The  tendency  of  recent  years  has  been  towards  easier 
and  swifter  methods  than  those  which  were  in  favour 
during  the  first  half  of  the  nineteenth  century :  and  in 
Germany  lawyers  and  publicists  are  now  disposed  to 
minimize  the  difference  between  constitutional  changes 
and  ordinary  statutes,  partly  perhaps  because  doctrines 
of  popular  sovereignty  obtain  little  sympathy  from  the 
school  dominant  in  the  new  Empire.  That  Empire  itself 
presents  quite  peculiar  phenomena.  So  far  as  the  Reichs- 
tag or  Federal  Assembly  is  concerned,  the  constitution 
can  be  altered  by  ordinary  legislation.  But  in  the  Federal 
Council  a  majority  is  required  large  enough  to  enable 
either  Prussia  on  the  one  hand  or  a  combination  of  the 
smaller  States  on  the  other  to  prevent  any  change. 
This  is  because  the  component  members  of  the  Federa- 
tion are  not  republics,  as  in  America,  Switzerland,  and 
Australia,  bul  arc  (except  the  three  Manse  cities)  monar- 
chies, so  that  the  Upper  Federal  House  represents  not 


FLEXIBLE  AXD   RIGID   CONSTITUTIONS  183 

the  people  but  the  governments  of  the  several  German 
States. 

It  is  evident  that  the  greater  or  less  stability  of  any 
given  constitution  will  (other  things  being  equal)  be 
determined  by  the  comparative  difficulty  or  ease  of  carry- 
ing changes  in  one  or  other  of  the  above  methods.  As 
one  at  least  of  them,  that  of  committing  the  function  of 
revision  to  a  Constitutional  Convention  not  followed 
by  a  popular  vote,  seems  to  interpose  no  more,  and 
possibly  even  less,  difficulty  or  delay  than  does  the 
ordinary  process  of  law-making  by  a  two-chambered 
legislature,  it  may  be  asked  why  a  constitution  change- 
able in  such  a  way  should  be  called  Rigid  at  all.  Because 
inasmuch  as  the  method  of  changing  it  is  different  from 
that  of  passing  ordinary  statutes,  the  people  are  led  to 
realize  the  importance  of  the  occasion,  and  may  be  de- 
terred, by  the  trouble  and  formalities  involved  in  creating 
the  special  body,  from  too  lightly  or  frequently  tamper- 
ing with  their  fundamental  laws.  It  seems  a  more  mo- 
mentous step  to  create  this  convention  ad  hoc  than  to 
carry  a  measure  through  a  legislature  which  already 
exists,  and  is  daily  employed  on  legislative  work.  Ex- 
perience has,  moreover,  shown  in  the  United  States,  the 
country  in  which  this  method  has  been  largely  used  for 
redrafting,  or  preparing  amendments  to,  the  Constitu- 
tions of  the  several  States1,  that  a  set  of  men  can  be 
found  for  the  work  of  a  Convention  better  than  those 
who  form  the  ordinary  legislature  of  the  State,  and  that 
their  proceedings  when  assembled  excite  more  attention 
and  evoke  more  discussion  than  do  those  of  a  State 
Legislature,  a  body  which  now  receives  little  respect, 
though  perhaps  as  much  as  it  deserves.  Nowadays, 
however,  a  draft  constitution  prepared  by  a  Convention 
is  in  an  American  State  almost  always  submitted  to  the 
people  for  their  approval. 

1  No  Constitutional  Convention  has  ever  been  held  for  revising  the  Federal 
Constitution  of  1787-9,  which  was  drafted  by  a  Convention  and  adopted  by  the 
thirteen  States  in  succession. 


184  FLEXIBLE  AND   RIGID   CONSTITl  T10NB 

The  French  plan  of  using  the  two  Houses  sitting 
together  as  a  Constituent  Convention  has  a  certain  in- 
terest for  Englishmen,  because  the  suggestion  has  been 
made  that  disputes  between  their  House  of  Lords  and 
House  of  Commons  might  be  settled  by  a  vote  of  both 
sitting  together,  i.e.  of  the  whole  of  the  Great  Council 
of  the  Nation  *  as  it  sat  in  the  thirteenth  century  before 
it  had  formed  the  habit  of  debating  and  voting  in  two 
Houses.  It  still  meets  (but  does  not  debate  or  vote) 
as  one  body  when  the  Sovereign,  or  a  Commission  re- 
presenting the  Sovereign,  is  present,  as  happens  at  the 
beginning  and  at  the  end  of  each  session. 

To  examine  the  distinctive  qualities  of  Rigid  Consti- 
tutions, as  I  must  now  do,  is  virtually  to  traverse  again 
the  same  path  which  was  followed  in  investigating  those 
of  the  Flexible  type,  for  the  points  in  which  the  latter 
were  found  deficient  are  those  in  which  Rigid  Constitu- 
tions excel,  while  the  merits  of  the  Flexible  indicate  the 
faults  of  the  Rigid.    The  inquiry  may,  therefore,  be  brief. 

The  two  distinctive  merits  claimed  for  these  Consti- 
tutions are  their  Definiteness  and  their  Stability. 

XI.    The  Definiteness  of  Rigid  Constitutions. 

We  have  seen  that  the  distinctive  mark  of  these  Rigid 
Constitutions  is  their  superiority  to  ordinary  statutes. 
They  are  not  the  work  of  the  ordinary  legislature,  and 
therefore  cannot  be  changed  by  it.  They  are  embodied 
in  one  written  document,  or  possibly  in  a  few  documents, 
so  that  their  provisions  are  ascertainable  without  doubt 
by  a  reference  to  the  documentary  terms.  This  feature 
is  a  legitimate  consequence  of  the  importance  which  be- 
longs to  a  la*w  placed  above  all  other  laws.    That  which 

1  This  plan  would  have  more  chance  of  being  favourably  entertained  were  the 
Upper  House  now,  as  it  was  in  1760,  less  than  two  hundred  strong.  As  it  is  now 
nearly  as  large  as  the  House  of  Commons,  with  a  maiority  of  about  fourteen  to 
one  belonging  to  one  political  party,  the  party  which  is  in  a  permanent  minority 
might  feel  that  the  chances  are  not  equal. 


FLEXIBLE  ISO  RIGID   CONSTITUTIONS  185 

is  to  be  the  sheet-anchor  of  the  State,  giving  permanent 
shape  to  its  political  scheme,  cannot  be  left  unwritten, 
and  cannot  be  left  to  be  gathered  from  a  comparison  of  a 
considerable  number  of  documents  which  may  be  con- 
fused or  inconsistent.  Whether  it  spring  from  the  agree- 
ment of  the  citizens  or  from  the  free  gift  of  a  monarch, 
it  must  be  embodied  if  possible  in  one,  if  not,  at  any  rate 
in  only  a  few  solemn  instruments.  That  which  is  to  be  a 
fundamental  law,  limiting  the  power  of  the  legislature, 
must  be  set  forth  in  specific  and  unmistakable  terms — 
else  how  shall  it  be  known  when  the  legislature  is  infring- 
ing upon  or  violating  it  ?  A  Flexible  Constitution,  which 
the  legislature  can  modify  or  destroy  at  its  pleasure, 
though  it  might  conceivably  be  embodied  in  one  docu- 
ment only,  is  in  fact  almost  always  to  be  collected  from 
at  least  several  documents,  and  is  often,  like  the  Flexible 
Constitution  of  England,  scattered  through  a  multitude 
of  statutes  and  collections  of  precedents.  But  the  bene- 
fits expected  from  a  Rigid  Constitution  would  be  lost 
were  its  provisions  left  in  similar  confusion. 

It  is  not,  however,  to  be  supposed  that  the  citizen  of 
a  country  controlled  by  a  Rigid  Constitution  who  desires 
to  understand  the  full  scope  and  nature  of  his  govern- 
ment will  find  all  that  he  needs  in  the  document  itself. 
No  law  ever  was  so  written  as  to  anticipate  and  cover  all 
the  cases  that  can  possibly  arise  under  it1.  There  will 
always  be  omissions,  some  left  intentionally,  because  the 
points  not  specifically  covered  were  deemed  fitter  for  the 
legislature  to  deal  with  subsequently,  some,  again,  be- 
cause the  framers  of  the  constitution  could  not  agree,  or 
knew  that  the  enacting  authority  would  not  agree,  re- 
garding them.  Other  omissions,  unnoticed  at  the  time, 
will  be  disclosed  by  the  course  of  events,  for  questions 
are  sure  to  arise  which  the  imagination  or  foresight  of 
those  who  prepared  the  constitution  never  contemplated. 
There  will  also  be  expressions  whose  meaning  is  ob- 

1  '  Neque  leges  neque  senatus  consulta  ita  scribi  possunt,  ut  omnes  casus  qui 
quandoquc  incidcrint  coroprehendantur.' — Iulianus  in  Digest  i.  3,  10. 


186  FLEXIBLE  AND   RICH)   CONSTITUTIONS 

scure,  and  whose  application  to  unforeseen  cases  will  be 
found  doubtful  when  those  cases  have  to  be  dealt  with. 
Here  let  us  distinguish  three  classes  of  omissions  or 
obscurities: — 

The  first  class  includes  matters,  passed  over  in  silence 
by  the  written  constitution,  which  cannot  be  deemed  to 
have  been  left  to  be  settled  either  by  the  legislature  or 
by  any  other  organ  of  government,  because  they  are  too 
large  or  grave,  as  for  instance  matters  by  dealing  with 
which  the  legislature  would  disturb  the  balance  of  the 
constitution  and  encroach  on  the  province  of  the  Execu- 
tive, or  the  Judiciary,  or  (in  a  Federal  Government)  of 
the  component  States.  Matters  belonging  to  this  class 
can  only  be  dealt  with  by  an  amendment  of  the  consti- 
tution itself. 

The  second  class  includes  gaps  or  omissions  relating 
to  matters  not  palpably  outside  the  competence  of  the 
legislature  as  defined  by  the  constitution.  Here  the 
proper  course  will  be  for  the  legislature  to  regulate 
such  matters  by  statute,  or  else  to  leave  them  to  be 
settled  by  the  action  of  the  several  organs  of  government 
each  acting  within  its  own  sphere.  These  organs  may 
by  such  action  create  a  body  of  usage  which,  when  well 
settled,  will  practically  supplement  the  defects  of  the 
constitution,  as  statutes  will  do  in  like  manner,  so  far  as 
they  are  passed  to  cover  the  omitted  cases. 

The  third  class  consists  not  of  omissions  but  of  matters 
which  are  referred  to  by  the  constitution,  but  in  terms 
whose  meaning  is  doubtful.  Here  the  question  is  what 
interpretation  is  to  be  given  to  its  words  by  the  authority 
entitled  to  interpret,  that  authority  being  in  some  coun- 
tries the  legislature,  in  others  the  judicial  tribunals.  To 
the  subject  of  Interpretation  I  shall  presently  return 
Meantime,  it  must  be  noted  that  both  Legislation  and 
Usage  in  filling  up  the  vacant  spaces  in  the  constitution, 
and  Interpretation  in  explaining  its  application  to  a 
scries  of  new  cases  as  they  arise  upon  points  not  ex- 
pressly covered  by  its  words,  expand  and  develop  a  con- 


FLEXIBLE  AND  R1U1D   CONSTITUTIONS  187 

stitution,  and  may  make  it  after  a  long  interval  of  time 
different  from  what  it  seemed  to  be  to  those  who  watched 
its  infancy.  The  statutes,  usages,  and  explanations  afore- 
said will  in  fact  come  to  form  a  sort  of  fringe  to  the  con- 
stitution, cohering  with  it,  and  possessing  practically  the 
same  legal  authority  as  its  express  words  have.  And  it 
thus  may  happen  that  (as  in  the  United  States)  a  large 
mass  of  parasitic  law  grows  up  round  the  document  or 
documents  which  contain  the  Constitution.  Nevertheless 
there  will  still  remain  a  distinction  between  this  parasitic 
law  and  usage  and  the  provisions  of  the  constitution 
itself.  The  latter  stand  unchangeable,  save  by  constitu- 
tional amendment.  Statutes,  on  the  other  hand,  can  be 
changed  by  the  legislature ;  usage  may  take  a  new  direc- 
tion ;  the  decisions  given  interpreting  the  constitution 
may  be  recalled  or  varied  by  the  authority  that  pro- 
nounced them.  All  these  are  in  fact  Flexible  parasites 
growing  upon  a  Rigid  stem.  Thus  it  will  be  seen  that  the 
apparent  definiteness  and  simplicity  of  Documentary 
Constitutions  may  in  any  given  case  be  largely  qualified 
by  the  growth  of  a  mass  of  quasi-constitutional  matter 
which  has  to  be  known  before  the  practical  working  of 
the  constitution  can  be  understood. 

XII.    The  Stability  of  Rigid  Constitutions. 

The  stability  of  a  constitution  is  an  object  to  be  much 
desired  both  because  it  inspires  a  sense  of  security  in  the 
minds  of  the  citizens,  encouraging  order,  industry  and 
thrift,  and  because  it  enables  experience  to  be  accumu- 
lated whereby  the  practical  working  of  the  constitution 
may  be  improved.  Political  institutions  are  under  all 
circumstances  difficult  to  work,  and  when  they  are  fre- 
quently  changed,  the  nation  does  not  learn  how  to  work 
them  properly.  Experiment  is  the  soul  of  progress,  but 
experiments  must  be  allowed  a  certain  measure  of  time. 
The  plant  will  not  grow  if  men  frequently  uncover  the 
roots  to  see  how  thev  are  striking-     Constitutions  em- 


1SS  FLEXIBLE   AM)    h'KUD   CONSTITUTIONS 

bodied  in  one  legal  document  and  unchangeable  by  the 
legislature,  are  intended  to  be,  and  would  seem  likely 
to  be,  peculiarly  durable.  Being  definite,  they  do  not 
give  that  opening  to  small  deviations  and  perversions 
likely  to  arise  from  the  vagueness  of  a  Flexible  or  '  un- 
written '  Constitution,  or  from  the  probable  discre- 
pancies between  the  different  laws  and  traditions  of 
which  it  consists.  They  may  be  battered  down,  but  they 
cannot  easily  (save  by  a  method  to  be  presently  ex- 
amined) be  undermined.  When  an  attack  is  made  upon 
them,  whether  by  executive  acts  violating  their  provi- 
sions, or  by  the  passing  of  statutes  inconsistent  with 
those  provisions,  such  an  attack  can  hardly  escape  obser- 
vation. It  is  a  plain  notice  to  the  defenders  of  the  consti- 
tution to  rally  and  to  stir  up  the  people  by  showing  the 
mischief  of  an  insidious  change.  The  principles  on  which 
the  government  rests,  being  set  forth  in  a  broad  and 
simple  form,  obtain  a  hold  upon  the  mind  of  the  com- 
munity, which,  if  it  has  been  accustomed  to  give  those 
principles  a  general  approval,  will  be  unwilling  to  see 
them  tampered  with.  Moreover  the  process  prescribed 
for  amendment  interposes  various  delays  and  formalities 
before  a  change  can  be  carried  through,  pending  which 
the  people  can  reconsider  the  issues  involved,  and  recede, 
if  they  think  fit,  from  projects  that  may  have  at  first 
attracted  them.  Both  in  Switzerland  and  in  the  States 
of  the  American  Union  it  has  repeatedly  happened  that 
constitutional  amendments  prepared  and  approved  by 
the  legislature  have  been  rejected  by  the  people,  not 
merely  because  the  mass  of  the  people  are  often  more 
conservative  than  their  representatives,  or  are  less  ame- 
nable to  the  pressure  of  particular  '  interests  '  or  sections 
of  opinion,  but  because  fuller  discussion  revealed  objec- 
tions whose  weight  had  not  been  appreciated  when  the 
proposal  first  appeared.  In  these  respects  the  Rigid 
Constitution  has  real  elements  of  stability. 

Nevertheless  it  may  be  really  less  stable  than  it  ap- 
pears, for  there  is  in  its  rigidity  an  element  of  danger. 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  189 

It  has  already  been  noted  that  a  constitution  of  the 
Flexible  type  finds  safety  in  the  elasticity  which  enables 
it  to  be  stretched  to  meet  some  passing  emergency,  and 
then  to  resume  its  prior  shape,  and  that  it  may  disarm 
revolution  by  meeting  revolution  half-way.  This  is  just 
what  the  Rigid  Constitution  cannot  do.  It  is  constructed, 
if  I  may  borrow  a  metaphor  from  mechanics,  like  an  iron 
railway-bridge,  built  solidly  to  resist  the  greatest  amount 
of  pressure  by  wind  or  water  that  is  likely  to  impinge 
upon  it.  If  the  materials  are  sound  and  the  workmanship 
good,  the  bridge  resists  with  apparent  ease,  and  perhaps 
without  showing  signs  of  strain  or  displacement,  up  to 
the  highest  degree  of  pressure  provided  for.  But  wheni 
that  degree  has  been  passed,  it  may  break  suddenly  and 
utterly  to  pieces,  as  the  old  Tay  Bridge  did  under  the 
storm  of  December,  1879.  The  fact  that  it  is  very  strong 
and  all  knit  tightly  into  one  fabric,  while  enabling  it  to 
stand  firm  under  small  oscillations  or  disturbances,  may 
aggravate  great  ones.  For  just  as  the  whole  bridge 
collapses  together,  so  the  Rigid  Constitution,  which  has 
arrested  various  proposed  changes,  may  be  overthrown 
by  a  popular  tempest  which  has  gathered  strength  from 
the  very  fact  that  such  changes  were  not  and  under  the 
actual  conditions  of  politics  could  not  be  made  by  way 
of  amendment.  When  a  party  grows  up  clamouring  for 
some  reforms  which  can  be  effected  only  by  changing 
the  constitution,  or  when  a  question  arises  for  dealing 
with  which  the  constitution  provides  no  means,  then, 
if  the  constitution  cannot  be  amended  in  the  legal  way, 
because  the  legally  prescribed  majority  cannot  be  ob- 
tained, the  discontent  that  was  debarred  from  any  legal 
outlet  may  find  vent  in  a  revolution  or  a  civil  war.  The 
history  of  the  Slavery  question  in  the  United  States  il- 
lustrates this  danger  on  so  grand  a  scale  that  no  other 
illustration  is  needed.  The  Constitution  of  1787,  while 
recognizing  the  existence  of  slavery,  left  sundry  ques- 
tions, and  in  particular  that  of  the  extension  of  slavery 
into  new  territories  and  States,  unsettled.    Thirty  years 


190  FLEXIBLE  AND   RIGID   CONSTITUTIONS 

later  these  matters  became  a  cause  of  strife,  and  after 
another  thirty  years  this  strife  became  so  acute  as  to 
threaten  the  peace  of  the  country.  Both  parties  claimed 
that  the  Constitution  was  on  their  side.  Had  there  been 
no  Constitution  embodied  in  an  instrument  difficult  of 
change,  or  had  it  been  practicable  to  amend  the  Consti- 
tution, so  that  the  majority  in  Congress  could  have  had, 
at  an  earlier  stage,  a  free  hand  in  dealing  with  the  ques- 
tion, it  is  possible — though  no  one  can  say  that  it  is 
certain — that  the  War  of  Secession  might  have  been 
averted.  So  much  may  at  any  rate  be  noted  that  the  Con- 
stitution, which  was  intended  to  hold  the  whole  nation 
.together,  failed  to  do.  There  might  no  doubt  in  any 
case  have  been  armed  strife,  as  there  was  in  England 
under  its  Flexible  Constitution  in  1641.  But  it  is  at  least 
equally  probable  that  the  slave-holding  party,  which  saw 
its  hold  on  the  government  slipping  away,  hardened  its 
heart  because  it  held  that  it  was  the  true  exponent 
of  the  Constitution,  and  because  the  Constitution  made 
compromise  more  difficult  than  it  need  have  been  in  a 
country  possessing  a  fully  sovereign  legislature. 

Two  opposing  tendencies  are  always  at  work  in  coun- 
tries ruled  by  these  Constitutions,  the  one  of  which  tends 
to  strengthen,  the  other  to  weaken  them.  The  first  is 
,the  growth  of  the  respect  for  the  Constitution  which 
increasing  age  brings.  The  remark  is  often  made  that  if 
husband  and  wife  do  not  positively  dislike  one  another, 
and  if  their  respective  characters  do  not  change  under 
ill-health  or  misfortune,  every  year  makes  them  like  one 
another  better.  They  may  not  have  been  warmly  at- 
tached at  first,  but  the  memories  of  past  efforts  and 
hardships,  as  well  as  of  past  enjoyments,  endear  them 
more  and  more  to  one  another,  and  even  if  jars  and 
bickerings  should  unhappily  recur  from  time  to  time, 
the  strength  of  habit  renders  each  necessary  to  the  other, 
and  makes  that  final  severance  which,  at  moments  of 
exasperation,  they  may  possibly  have  contemplated  with 
equanimity,  a  severe  blow  when  it  arrives.    So  a  nation, 


FLEXIBLE  AND  HIGH)   CONSTITUTIONS  191 

though  not  contented  with  its  Constitution,  and  vexed 
by  quarrels  over  parts  of  it,  may  grow  fond  of  it  simply 
because  it  has  lived  with  it,  has  obtained  a  measure  of 
prosperity  under  it,  has  perhaps  been  wont  to  flaunt  its 
merits  before  other  nations,  and  to  toast  it  at  public 
festivities.  The  magic  of  self-love  and  self-complacency 
turns  even  its  meaner  parts  to  gold,  while  imaginative 
reverence  for  the  past  lends  it  a  higher  sanction.  This 
is  one  way  in  which  Time  may  work.  But  Time  also* 
works  against  it,  for  Time,  in  changing  the  social  and 
material  condition  of  a  people,  makes  the  old  political 
arrangements  as  they  descend  from  one  generation  to 
another  a  less  adequate  expression  of  their  political 
needs.  Nobody  now  discusses  the  old  problem  of  the 
Best  Form  of  Government,  because  everybody  now  ad- 
mits that  the  chief  merit  of  any  form  is  to  be  found  in  its 
suitability  to  the  conditions  and  ideas  of  those  among 
whom  it  prevails.  Now  if  the  conditions  of  a  country 
change,  if  the  balance  of  power  among  classes,  the 
dominant  ideas  of  reflective  men,  the  distribution  of 
wealth,  the  sources  whence  wealth  flows,  the  duties  ex- 
pected from  the  administrative  departments  of  govern- 
ment, all  become  different,  while  the  form  and  constitu- 
tionally-prescribed methods  of  government  remain  un- 
modified, it  is  clear  that  flaws  in  the  Constitution  will  be 
revealed  which  were  previously  unseen,  and  problems 
will  arise  with  which  its  arrangements  cannot  cope. 
The  remedy  is  of  course  to  amend  the  Constitution. 
But  that  is  just  what  may  be  impossible,  because  the 
requisite  majority  may  be  unattainable ;  and  the  oppo- 
nents of  amendment,  entrenched  behind  the  ramparts  of 
an  elaborate  procedure,  may  succeed  in  averting  changes 
which  the  safety  of  the  community  demands.  The  pro- 
visions that  were  meant  to  give  security  may  now  be 
dangerous,  because  they  stand  in  the  way  of  natural 
development. 

Even  where  no  strong  party  interest   is  involved  it 
may  be  hard  to  pass  the  amendments  needed.  The  his- 


vyi  FLEXIBLE  AND   RIGID  V0X8TITUTI0.XS 

tory  of  the  United  States  again  supplies  a  case  in  point. 
Two  defects  in  its  Constitution  are  admitted  by  most 
political  thinkers.  One  is  the  absence  of  power  to  estab- 
lish a  uniform  law  of  marriage  and  divorce  over  the 
whole  Union.  The  other  is  the  method  of  conducting 
the  election  of  a  President,  a  method  which  in  1876 
brought  the  country  to  the  verge  of  civil  war,  and  may 
fevery  four  years  involve  the  gravest  risks.  Yet  it  has 
•been  found  impossible  to  procure  any  amendment  on 
either  point,  because  an  enormous  force  of  united  public 
opinion  is  needed  to  ensure  the  concurrence  of  two- 
thirds  of  both  Houses  of  Congress  and  three-fourths  of 
the  States.  The  first  of  these  two  changes  excites  no 
sufficient  interest  among  politicians  to  make  them  care 
to  deal  with  it.  The  second  is  neglected,  because  no  one 
has  a  clear  view  of  what  should  be  substituted,  and 
neither  party  feels  that  it  has  more  to  gain  than  has  the 
other  by  grappling  with  the  problem. 

A  historical  comparison  of  the  two  types  as  regards 
the  smoothness  of  their  working,  and  the  consequent 
tendency  of  one  or  other  to  secure  a  quiet  life  to  the 
State,  yields  few  profitable  results,  because  the  circum- 
stances of  different  nations  are  too  dissimilar  to  enable 
close  parallels  to  be  drawn,  and  because  much  depends 
upon  the  skill  with  which  the  provisions  of  each  particu- 
lar instrument  have  been  drawn  and  upon  the  greater  or 
less  particularity  of  those  provisions.  The  present  Con- 
stitution of  France,  for  instance,  is  contained  in  two 
very  short  and  simple  documents,  which  determine  only 
the  general  structure  of  the  government,  and  are  in  size 
not  one-twentieth  of  the  Federal  Constitution  of  Switzer- 
land. Hence  it  follows  that  a  far  freer  play  is  left  to  the 
legislature  and  executive  in  France  than  in  Switzerland ; 
and  that  these  two  authorities  have  in  the  former  State 
more  power  of  meeting  any  change  in  the  conditions  of 
the  country,  and  also  more  power  of  doing  harm  by 
hasty  and  unwise  action,  than  is  permitted  in  the  latter. 
A^  Adaptability  is  the  characteristic  merit  and  insecurity 


FLEXIBLE  AND   RIGID   CONSTITUTIONS  193 

the  characteristic  defect  of  a  Flexible  Constitution,  so 
the  drawback  which  corresponds  to  the  Durability  of 
the  Rigid  is  its  smaller  capacity  for  meeting  the  changes 
and  chances  of  economic,  social  and  political  conditions. 
A  provision  strictly  defining  the  structure  of  the  govern- 
ment may  prevent  the  evolution  of  a  needed  organ.  A 
prohibition  debarring  the  legislature  from  passing  cer- 
tain kinds  of  measures  may  prove  unfortunate  when 
a  measure  of  that  kind  would  be  the  proper  remedy. 
Every  security  has  its  corresponding  disadvantage. 

XIII.  The  Interpretation  of  Rigid  Constitutions. 

A  well-drawn  Rigid  Constitution  will  confine  itself  to 
essentials,  and  leave  many  details  to  be  filled  in  subse- 
quently by  ordinary  legislation  and  by  usage.  But  (as 
already  observed)  even  the  best-drawn  instrument  is  sure 
to  have  omitted  some  things  which  ought  to  have  been 
expressly  provided  for,  to  have  imposed  restrictions 
which  will  prove  inconvenient  in  practice,  to  contain 
provisions  which  turn  out  to  be  susceptible  of  different 
interpretations  when  cases  occur  raising  a  point  to  which 
the  words  of  those  provisions  do  not  seem  to  be  directly 
addressed.  When  any  of  these  things  happen,  the  autho- 
rities, legislative  and  executive,  who  have  to  work  the 
Constitution  find  themselves  in  a  difficulty.  Steps  seem 
called  for  which  the  Constitution  either  does  not  give 
power  to  do,  or  forbids  to  be  done,  or  leaves  in  such 
doubt  as  to  raise  scruples  and  controversies.  The  autho- 
rities, or  the  nation  itself,  have  then  three  alternative 
courses  open  to  them.  The  first  is  to  submit  to  the  re- 
strictions which  the  Constitution  imposes,  and  abandon 
a  contemplated  course  of  action,  though  the  public  in- 
terest demands  it.  This  is  disagreeable,  but  if  the  case  is 
not  urgent,  may  be  the  best  course,  though  it  tends  to  the 
disparagement  of  the  Constitution  itself.  The  second 
course  is  to  amend  the  Constitution :  and  it  is  obviously 
the  proper  one,  if  it  be  possible.  But  it  may  be  practically 
13 


194  FLEXIBLE  AND    RIGID   CONSTITUTIONS 

impossible,  because  the  procedure  for  passing  an  amend- 
ment may  be  too  slow,  the  need  for  action  being  urgent, 
or  because  the  majority  that  can  be  secured  for  amend- 
ment, even  if  large,  may  be  smaller  than  the  Constitution 
prescribes.  The  only  remaining  expedient  is  that  which 
is  euphemistically  called  Extensive  Interpretation,  but 
may  really  amount  to  Evasion.  Evasion,  pernicious  as 
it  is,  may  give  a  slighter  shock  to  public  confidence  than 
open  violation,  as  some  have  argued  that  equivocation 
leaves  a  man's  conscience  less  impaired  for  future  use 
than  does  the  telling  of  a  downright  falsehood.  Cases 
occur  in  which  the  Executive  or  the  Legislature  profess 
to  be  acting  under  the  Constitution,  when  in  reality 
they  are  stretching  it,  or  twisting  it,  i.e.  are  putting  a 
forced  construction  upon  its  terms,  and  affecting  to 
treat  that  as  being  lawful  under  its  terms  which  the 
natural  sense  of  the  terms  does  not  justify.  The  ques- 
tion follows  whether  such  an  evasion  will  be  held  legal, 
i.e.  whether  acts  done  in  virtue  of  such  a  forced  construc- 
tion as  aforesaid  will  be  deemed  constitutional,  and  will 
bind  the  citizens  as  being  legally  done.  This  will  evi- 
dently depend  on  a  matter  we  have  not  yet  considered, 
but  one  of  profound  importance,  viz.  the  authority 
in  whom  is  lodged  the  right  of  interpreting  a  Rigid 
Constitution. 

On  this  point  there  is  a  remarkable  diversity  of  theory 
and  practice  between  countries  which  follow  the  English 
and  countries  which  follow  the  Roman  law.  The  English 
attribute  the  right  to  the  Judiciary.  As  a  constitutional 
instrument  is  a  law,  distinguished  from  other  laws  only 
by  its  higher  rank,  principle  suggests  that  it  should,  like 
other  laws,  be  interpreted  by  the  legal  tribunals,  the  last 
word  resting,  as  in  other  matters,  with  the  final  Court  of 
Appeal.  This  principle  of  referring  to  the  Courts  all 
questions  of  legal  interpretation  may  be  said  to  be  in- 
herent in  the  English  Common  Law,  and  holds  the  field 
in  all  countries  whose  systems  are  built  upon  the  founda- 
tion of  that  Common  Law.     In  particular,  it  holds  good 


FLEXIBLE  AND   RIGID   CONSTITUTIONS  195 

in  the  United  Kingdom  and  in  the  United  States.  As  the 
British  Parliament  can  alter  any  part  of  the  British 
Constitution  at  pleasure,  the  principle  is  of  secondary 
political  importance  in  England,  for  when  any  really 
grave  question  arises  on  the  construction  of  a  constitu- 
tional law  it  is  dealt  with  by  legislation.  However,  the 
action  of  the  Courts  in  construing  the  existing  law  is 
watched  with  the  keenest  interest  when  questions  arise 
which  the  Legislature  refuses  to  deal  with,  such,  for 
instance,  as  those  that  affect  the  doctrine  and  discipline 
of  the  Established  Church.  So  in  the  seventeenth  cen- 
tury, when  constitutional  questions  were  at  issue  between 
the  King  and  the  House  of  Commons,  which  it  was  im- 
possible to  settle  by  statute,  because  the  king  would 
have  refused  consent  to  bills  passed  by  the  Commons, 
the  power  of  the  Judges  to  declare  the  rules  of  the 
ancient  Constitution  was  of  great  significance.  In  the 
United  States,  where  Congress  cannot  alter  the  Con- 
stitution, the  function  of  the  Judiciary  to  interpret  the 
will  of  the  people  as  set  forth  in  the  Constitution  has 
attained  its  highest  development.  The  framers  of  that 
Constitution  perhaps  scarcely  realized  what  the  effect 
of  their  arrangements  would  be.  More  than  ten  years 
passed  before  any  case  raised  the  point ;  and  when  the 
Supreme  Court  declared  that  an  Act  of  Congress  might 
be  invalid  because  in  excess  of  the  power  granted  by 
the  Constitution,  some  surprise  and  more  anger  were 
expressed.  The  reasoning  on  which  the  Court  proceeded 
was,  however,  plainly  sound,  and  the  right  was  therefore 
soon  admitted.  Canada  and  Australia  have  followed  the 
English  doctrine,  so  the  Bench  has  a  weighty  function 
under  the  constitutions  of  both  those  Federations. 

On  the  European  Continent  a  different  view  prevails, 
and  the  Legislature  is  held  to  be  the  judge  of  its  own 
powers  under  the  Constitution,  so  that  no  Court  of  law 
may  question  the  authority  of  a  statute  passed  in  due 
form.  Such  is  the  rule  in  Switzerland.  There,  as  in 
most  parts  of  the  European  Continent,  the  separation  of 


196  FLEMIiLlJ   AM)    RICH)   <()\ sTITTTIOXS 

the  Judiciary  from  the  other  two  powers  has  been  less 
complete  than  in  England,  and  the  deference  to  what 
Englishmen  and  Americans  call  the  Rule  of  Law  less 
profound.  The  control  over  governmental  action  which 
the  right  of  interpretation  implies  seems  to  the  Swiss 
too  great,  and  too  political  in  its  nature,  to  be  fit  for  a 
legal  tribunal.  It  is  therefore  vested  in  the  National 
Assembly,  which  when  a  question  is  raised  as  to  the  con- 
stitutionality of  a  Federal  Statute  or  Executive  Act,  or 
as  to  the  transgression  of  the  Federal  Constitution  by  a 
Cantonal  Statute,  is  recognized  as  the  authority  com- 
petent to  decide.  The  same  doctrine  seems  to  prevail  in 
the  German  Empire,  though  the  point  is  there  not  quite 
free  from  doubt,  and  also  in  the  Austrian  Monarchy,  in 
France,  and  in  Belgium.  In  the  Orange  Free  State,  liv- 
ing under  Roman-Dutch  law,  the  Bench,  basing  itself  on 
American  precedents,  claimed  the  right  of  authoritative 
interpretation,  but  the  Legislature  hesitated  to  admit  it. 

American  lawyers  conceive  that  the  strength  and  value 
of  a  Rigid  Constitution  are  greatly  reduced  when  the 
Legislature  becomes  the  judge  of  its  own  powers,  en- 
titled after  passing  a  statute  which  really  transgresses 
the  Constitution  to  declare  that  the  Constitution  has  in 
fact  not  been  transgressed./'The  Swiss,  however,  deem 
the  disadvantages  of  the  American  method  still  more 
serious,  for  they  hold  that  it  gives  the  last  word  to  the 
judges,  persons  not  chosen  for  or  fitted  for  such  a  func- 
tion, and  they  declare  that  in  point  of  fact  public  opinion 
and  the  traditions  of  their  government  prevent  the  power 
vested  in  their  National  Assembly  from  being  abused. 
And  it  must  be  added  that  the  Americans  have  so  far 
felt  the  difficulty  which  the  Swiss  dwell  on,  that  the 
Supreme  Court  has  refused  to  pronounce  upon  the  ac- 
tion of  Congress  in  '  purely  political  cases,'  i.  c.  cases 
where  the  arguments  used  to  prove  or  disprove  the  con- 
formity to  the  Constitution  of  the  action  taken  by  Con- 
gress are  of  a  political  nature. 

Returning  to  the  question  of  legislative  action  alleged 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  197 

to  transgress  the  Constitution,  it  is  plain  that  if  the 
Legislature  be,  as  in  Switzerland,  the  arbiter  of  its  own 
powers,  so  that  the  validity  of  its  acts  cannot  be  ques- 
tioned in  a  court  of  law,  there  is  no  further  difficulty.  But 
where  that  validity  can  be  challenged,  as  in  the  United 
States,  it  might  be  supposed  that  every  unconstitutional 
statute  will  be  held  null,  and  that  thus  any  such  stretch- 
ing or  twisting  of  the  Constitution  as  has  been  referred 
to  will  be  arrested.  But  experience  has  shown  that  where 
public  opinion  sets  strongly  in  favour  of  the  line  of  con- 
duct which  the  Legislature  has  followed  in  stretching 
the  Constitution,  the  Courts  are  themselves  affected  by 
that  opinion,  and  go  as  far  as  their  legal  conscience  and 
the  general  sense  of  the  legal  profession  permit — pos- 
sibly sometimes  even  a  little  farther — in  holding  valid 
what  the  Legislature  has  done.  This  occurs  most  fre- 
quently where  new  problems  of  an  administrative  kind 
present  themselves.  The  Courts  recognize,  in  fact,  that 
'  principle  of  development  '  which  is  potent  in  politics  as 
well  as  in  theology.  Human  affairs  being  what  they  are, 
there  must  be  a  loophole  for  expansion  or  extension  in 
some  part  of  every  scheme  of  government ;  and  if  the 
Constitution  is  Rigid,  Flexibility  must  be  supplied  from 
the  minds  of  the  Judges.  Instances  of  this  kind  have 
occurred  in  the  United  States,  as  when  some  twenty 
years  ago  the  Supreme  Court  recognized  a  power  in  a 
State  Legislature  to  deal  with  railway  companies  not 
consistent  with  the  opinions  formerly  enounced  by  the 
Court,  though  they  disclaimed  the  intention  of  over- 
ruling those  opinions  x. 

1  A  still  more  remarkable  instance  has  been  furnished,  while  these  pages  are 
passing  through  the  press  (June,  190O,  by  the  decisions  of  the  Supreme  Court  of 
the  United  States  in  the  group  of  cases  which  arose  out  of  questions  relating  to 
the  applicability  of  the  Federal  Constitution  to  the  island  of  Puerto  Rico,  recently 
ceded  by  Spain  to  the  United  States.  The  Court  had  to  deal  with  a  constitutional 
question  raising  large  issues  of  national  policy  regarding  the  application  of  the 
Federal  Constitution  to  territories  acquired  by  conquest  and  treaty:  and  its  judge- 
ments in  these  cases  (given  in  every  case  by  majorities  only)  have  expanded  the 
Constitution,  i.e.  have  declared  it  to  have  a  meaning  which  may  well  be  its  true 
meaning,  but  which  was  not  previously  ascertained,  and  certainly  by  many  lawyers 
not  admitted,  to  be  its  true  meaning. 


198  FLLLXlllLi;   AM)   RWIU   C0MST1TVTI0N8 

Does  not  a  danger  lurk  in  this  ?  May  not  a  majority 
in  the  Legislature,  if  and  when  they  have  secured  the 
concurrence,  honest  or  dishonest,  of  the  Judiciary,  prac- 
tically disregard  the  Constitution?  May  not  the  Execu- 
tive conspire  with  them  to  manipulate  places  on  the 
highest  Court  of  Appeal,  so  as  to  procure  from  it  such 
declarations  of  the  meaning  of  the  Constitution  as  the 
conspiring  parties  desire?  May  not  the  Constitution 
thus  be  slowly  nibbled  away?  Certainly.  Such  things 
may  happen.  It  is  only  public  opinion  and  established 
tradition  that  will  avail  to  prevent  them.  But  it  is  upon 
public  opinion,  moulded  by  tradition,  that  all  free  govern- 
ments must  in  the  last  resort  rely. 

XIV.    Democracies  and  Rigid  Constitutions. 

The  mention  of  traditions,  that  is  to  say  of  the  mental 
and  moral  habits  of  judgement  which  a  nation  has 
formed,  and  which  guide  its  political  life,  as  the  habits  of 
each  one  of  us  guide  his  individual  life,  suggests  an  in- 
quiry as  to  the  effect  of  Documentary  Constitutions  on 
the  ideas  and  habits  of  those  who  live  under  them.  I  will 
not  venture  on  broad  generalizations,  because  it  is  hard 
to  know  how  much  should  be  assigned  to  the  racial  ten- 
dencies of  a  nation,  how  much  to  the  circumstances  of  its 
history,  how  much  to  its  institutions.  But  the  cases  of 
Switzerland  and  the  United  States  seem  to  show  that  the 
tendency  of  these  instruments  is  to  foster  a  conservative 
temper.  The  nation  feels  a  sense  of  repose  in  the  settled 
and  permanent  form  which  it  has  given  to  its  govern- 
ment. It  is  not  alarmed  by  the  struggles  of  party  in  the 
legislature,  because  aware  that  that  body  cannot  disturb 
the  fundamental  institutions.  Accordingly  it  will  often, 
contracting  a  dislike  to  change,  negative  the  amendments 
which  the  legislature  submits  to  it.  This  happens  in 
Switzerland,  as  already  observed;  and  the  people  of  the 
United  States,  though  liable  to  sudden  and  violent  waves 
of  political  opinion,  show  so  little  disposition  to  innovate 


FLEXIBLE  AND  R1U1D   CONSTITUTIONS  199 

that  Congress  has  not  proposed  any  amendments  to  the 
State  Legislatures  since  1870  i.  I  may  be  reminded  that 
the  Constitutions  of  the  several  States  of  the  Union  are 
frequently  recast  or  amended  in  detail.  This  is  true,  but 
the  cause  lies  not  so  much  in  a  restless  changefulness  as 
in  the  low  opinion  entertained  of  the  State  Legislatures. 
The  distrust  felt  for  these  bodies  induces  the  people  to 
take  a  large  part  of  what  is  really  ordinary  legislation 
out  of  their  hands,  and  to  enact  themselves,  in  a  form  of  a 
Constitution,  the  laws  they  wish.  State  Constitutions 
now  contain  many  regulations  on  matters  of  detail,  and 
have  thus,  in  most  States,  ceased  to  be  considered  funda- 
mental instruments  of  government.  To  revise  or  amend 
them  has  become  merely  a  convenient  method  of  direct 
popular  legislation,  similar  to  the  Swiss  Popular  Initia- 
tive and  Referendum.  But  the  fundamental  parts  of 
these  instruments  are  but  slightly  changed. 

In  estimating  the  influence  of  Flexible  Constitutions 
in  forming  the  political  character  of  a  nation,  in  stimu- 
lating its  intelligence  and  training  its  judgement,  it  was 
remarked  that  only  the  governing  class,  a  very  small 
part  of  the  nation  even  in  democratic  countries,  are  di- 
rectly affected.  This  is  less  true  of  a  Rigid  Constitution. 
While  a  Flexible  Constitution  like  the  Roman  or  English 
requires  much  knowledge,  tact  and  courage  to  work  it, 
and  develops  these  qualities  in  those  who  bear  a  part  in 
the  working  of  it,  as  legislators  or  officials  or  magis- 
trates, a  Rigid  Constitution  tends  rather  to  elicit  in- 
genuity, subtlety  and  logical  acumen  among  the  corre- 
sponding class  of  persons.  It  is  apt  to  give  a  legal  cast 
to  most  questions,  and  sets  a  high,  perhaps  too  high, 
premium  on  legal  knowledge  and  legal  capacity.  But  it 
goes  further.  It  affects  a  much  larger  part  of  the  com- 
munity than  the  Flexible  Constitution  does.  Few  even 
of  the  governing  class  can  be  expected  to  understand  the 
latter.     The  average  Roman  voter  in  the  comitia  in  the 

1  Something  must,  however,  be  allowed  for  the  provisions  which  require  large 
majorities  for  any  amendment  of  the  Constitution. 


L'OO  FLEXIBLE  AND   RIGID   COS  sTITl  TWXS 

days  of  Cicero,  like  the  average  English  voter  at  the 
polls  to-day,  probably  knew  but  little  about  the  legal 
structure  of  the  government  he  lived  under.  But  the 
average  Swiss  voter,  like  the  average  native  American 
voter  (for  the  recent  immigrant  is  a  different  sort  of 
creature),  understands  his  government,  can  explain  it, 
and  has  received  a  great  deal  of  education  from  it. 
Talk  to  a  Swiss  peasant  in  Solothurn  or  Glarus,  and 
you  will  be  astonished  at  his  mastery  of  principles  as 
well  as  his  knowledge  of  details.  Very  likely  he  has 
a  copy  of  the  Federal  Constitution  at  home.  He  has 
almost  certainly  learnt  it  at  school.  It  disciplines  his 
mind  much  as  the  Shorter  Catechism  trained  the  Presby- 
terian peasantry  of  Scotland.  As  there  is  no  mystery 
about  a  scheme  of  government  so  set  forth,  it  may  be 
thought  that  he  will  have  little  reverence  for  that 
which  he  comprehends.  It  is,  however,  his  own.  He 
feels  himself  a  part  of  the  Government,  and  seems 
to  be  usually  imbued  with  a  respect  even  for  the  letter 
of  the  instrument,  a  wholesome  feeling,  which  helps 
to  form  that  law-abiding  spirit  which  a  democracy 
needs. 

A  documentary  Constitution  appears  to  the  people  as 
the  immediate  outcome  of  their  power,  the  visible  image 
of  their  sovereignty.  It  is  commended  by  a  simplicity 
which  contrasts  favourably  with  the  obscure  technicali- 
ties of  an  old  common  law  Constitution.  The  taste  of 
the  multitude,  and  especially  of  that  class  which  out- 
numbers all  other  classes,  the  thinly-educated  persons 
whose  book-knowledge  is  drawn  from  dry  manuals  in 
mechanically-taught  elementary  schools, and  who  in  after 
life  read  nothing  but  newspapers,  or  penny  weeklies,  or 
cheap  novels — the  taste  of  tin's  class,  and  that  not  merely 
in  Europe  but  perhaps  even  more  in  the  new  countries, 
such  as  Western  America  ami  the  British  Colonies,  is 
a  taste  for  ideas  level  with  their  comprehension,  senti- 
ments which  need  no  subtlety  to  be  appreciated,  pro- 
positions which  can  be  expressed  in  unmistakable  posi- 


FLEXIBLE  AND  RIGID  CONSTITUTIONS  201 

tives  and  negatives.  Thus  the  democratic  man  (as  Plato 
would  call  him)  is  pleased  to  read  and  know  his  Con- 
stitution for  himself.  The  more  plain  and  straight- 
forward it  is  the  better,  for  so  he  will  not  need  to  ask 
explanations  from  any  one  more  skilled.  And  a  good 
reason  for  this  love  of  plainness  and  directness  may  be 
found  in  the  fact  that  the  twilight  of  the  older  Consti- 
tutions permitted  abuses  of  executive  power  against 
which  the  express  enactments  of  a  Rigid  Constitution 
protect  the  people.  Magna  Charta,  the  Bill  of  Rights, 
the  Twelve  Tables,  were  all  fragments,  or  rather  instal- 
ments, of  such  a  Constitution,  rightly  dear  to  the  com- 
mons, for  they  represented  an  advance  towards  liberty 
and  order1. 

The  theory  of  democracy  assumes  that  the  multitude 
are  both  competent  and  interested ;  competent  to  under- 
stand the  structure  of  their  government  and  their  own 
functions  and  duties  as  ultimately  sovereign  in  it,  in- 
terested as  valuing  those  functions,  and  alive  to  the 
responsibility  of  those  duties.  A  Constitution  set  out 
in  black  and  white,  contained  in  a  concise  document 
which  can  be  expounded  and  remembered  more  easily 
than  a  Constitution  growing  out  of  a  long  series  of 
controversies  and  compromises,  seems  specially  fitted 
for  a  country  where  the  multitude  is  called  to  rule.  Only 
memory  and  common  sense  are  needed  to  master  it.  It 
can  lay  down  general  principles  in  a  series  of  broad, 
plain,  authoritative  propositions,  while  in  the  case  of  the 
'  historical  Constitution  '  they  have  to  be  gathered  from 
various  sources,  and  expressed,  if  they  are  to  be  ex- 
pressed correctly,  in  a  guarded  and  qualified  form.  Now 
the  average  man,  if  intelligent  enough  to  comprehend 
politics  at  all,  likes  general  principles.  Even  if,  as  some 
think,  he  overvalues  them,  yet  his  capacity  for  absorbing 
them  gives  him  a  sort  of  comprehension  of  his  govern- 

'  The  'People's  Charter'  of  1848  was  called  for  as  another  such  onward  step. 
Its  Six  Points  were  to  be  the  basis  of  a  democratic  reconstruction  of  the  govern 
ment. 


202  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

ment  and  attachment  to  it  which  are  solid  advantages  in 
a  large  democracy. 

Constitutions  of  this  type  have  usually  arisen  when 
the  mass  of  the  people  were  anxious  to  secure  their 
rights  against  the  invasions  of  power,  and  to  construct 
a  frame  of  government  in  which  their  voices  should  be 
sure  to  prevail.  They  furnish  a  valuable  protection  for 
minorities  which,  if  not  liable  to  be  overborne  by  the 
tyranny  of  the  mass,  are  at  any  rate  liable  to  be  dis- 
heartened into  silence  by  superior  numbers,  and  so  need 
all  the  protection  which  legal  safeguards  can  give  them. 
Thus  they  have  generally  been  accounted  as  institutions 
characteristic  of  democracy,  though  the  cases  of  Ger- 
many and  Japan  show  that  this  is  not  necessarily  true. 
y.  A  change  of  view  has,  however,  become  noticeable 
within  the  last  few  years.  In  the  new  democracies  of 
the  United  States  and  the  British  self-governing  Colo- 
nies— and  the  same  thing  is  true  of  popularly  governed 
countries  in  Europe — the  multitude  no  longer  fears 
abuses  of  power  by  its  rulers.  It  is  itself  the  ruler, 
accustomed  to  be  coaxed  and  flattered.  It  feels  no 
need  for  the  protection  which  Rigid  Constitutions  give. 
And  in  the  United  States  it  chafes  under  those  restric- 
tions on  legislative  power,  embodied  in  the  Federal  Con- 
stitution or  State  Constitution  (as  the  case  may  be), 
which  have  surrounded  the  rights  of  property  and  the 
obligation  of  subsisting  contracts  with  safeguards  ob- 
noxious, not  only  to  the  party  called  Socialist,  but  to 
reformers  of  other  types.  As  these  safeguards  are  some- 
times thought  to  prevent  the  application  of  needed 
remedies  and  to  secure  impunity  for  abuses  which  have 
become  entrenched  behind  them,  the  aforesaid  consti- 
tutional provisions  have  incurred  criticism  and  censure 
from  various  sections,  and  many  attempts  have  been 
made  by  State  legislatures,  acting  at  the  bidding  of  those 
who  profess  to  control  the  votes  of  working  men,  to  dis- 
regard or  evade  the  restrictions.  These  attempts  are 
usually  defeated  by  the  action  of  the  Courts,  whence  it 


FLEXIBLE  AXD   RIGID    CONSTITUTIONS  203 

happens  that  both  the  Federal  Constitution  and  the  func- 
tions of  the  Judiciary  are  often  attacked  in  the  country 
which  was  so  extravagantly  proud  of  both  institutions 
half  a  century  ago.  This  strife  between  the  Bench  as  the 
defender  of  old-fashioned  doctrines  (embodied  in  the 
provisions  of  a  Rigid  Constitution  (Federal  or  State)) 
and  a  State  Legislature  acting  at  the  bidding  of  a  large 
section  of  the  voters  is  a  remarkable  feature  of  con- 
temporary America. 

The  significance  of  this  change  in  the  tendency  of 
opinion  is  enhanced  when  we  find  that  a  similar  change 
has  been  operative  in  the  opposite  camp.  The  very  con- 
siderations which  have  made  odious  to  some  American 
reformers  those  restrictions  on  popular  power,  behind 
which  the  great  corporations  and  the  so-called  '  Trusts  ' 
(and  capitalistic  interests  generally)  have  entrenched 
themselves,  have  led  not  a  few  in  England  to  applaud  the 
same  restrictions  as  invaluable  safeguards  to  property. 
Realizing,  a  little  late  in  the  day,  that  political  power  has 
in  England  passed  from  the  Few  to  the  Many,  fearing 
the  use  which  the  Many  may  make  of  it,  and  alarmed  by 
the  precedents  which  land  legislation  in  Ireland  has  set, 
they  are  anxious  to  tie  down  the  British  legislature,  while 
yet  there  is  time,  by  provisions  which  shall  prevent  in- 
terference with  a  man's  control  over  what  he  calls  his 
own,  shall  restrict  the  taking  of  private  property  for  pub- 
lic uses,  shall  secure  complete  liberty  of  contracting, 
and  forbid  interference  with  contracts  already  made. 
Others  in  England,  in  their  desire  to  save  political  insti- 
tutions which  they  think  in  danger,  propose  to  arrest 
any  sudden  popular  action  by  placing  those  institutions 
in  a  class  by  themselves,  out  of  the  reach  of  the  regular 
action  of  Parliament.  In  other  words,  the  establishment 
in  Britain  of  a  species  of  Rigid  Constitution  has  begun 
to  be  advocated,  and  advocated  by  the  persons  least  in- 
clined to  trust  democracy.  '  Imagine  a  country  ' — so 
they  argue — '  with  immense  accumulated  wealth,  and  a 
great  inequality  of  fortunes,  a  country  which  rules  a  vast 


204  FLEXIBLE  AND  RIGID   CONSTITUTIONS 

and  distant  Empire,  a  country  which  depends  for  her 
prosperity  upon  manufactures  liable  to  be  injured  by 
bad  legislation,  and  upon  a  commerce  liable  to  be  im- 
perilled by  unskilful  diplomacy,  and  suppose  that  such  a 
country  should  admit  to  power  a  great  mass  of  new  and 
untrained  voters,  to  whose  cupidity  demagogues  will 
appeal,  and  upon  whose  ignorance  charlatans  will  prac- 
tise. Will  not  such  a  country  need  something  better  for 
her  security  than  a  complicated  and  delicately-poised 
Constitution  resting  largely  on  mere  tradition,  a  Consti- 
tution which  can  at  any  moment  be  fundamentally  altered 
by  a  majority,  acting  in  a  revolutionary  transient  spirit, 
yet  in  a  perfectly  legal  way  ?  Ought  not  such  a  country 
to  place  at  least  the  foundations  of  her  system  and  the 
vital  principles  of  her  government  out  of  the  reach  of  an 
irresponsible  parliamentary  majority,  making  the  pro- 
cedure for  altering  them  so  slow  and  so  difficult  that 
there  will  be  time  for  the  conservative  forces  to  rally  to 
their  defence  before  any  fatal  changes  can  be  carried 
through  ? ' 

I  refer  to  these  arguments,  which  were  frequently 
heard  in  England  during  some  years  after  the  extension 
of  the  suffrage  in  1884  ],  with  no  intention  of  discuss- 
ing their  soundness,  for  that  belongs  to  politics,  but 
solely  for  the  sake  of  illustrating  how  different  are  the 
aspects  which  the  same  institution  may  come  to  wear. 
A  century  ago  revolutionists  were  the  apostles,  con- 
servatives the  enemies,  of  Rigid  Constitutions.  Even 
forty  years  ago  it  was  the  Flexibility  of  the  historical 
British  Constitution  that  was  its  glory  in  the  eyes  of 
admirers  of  the  British  system,  its  Rigidity  that  was  the 
glory  of  the  American  Constitution  in  the  eyes  of  fervent 
democrats. 

1  They  arc  much  less  heard  now  (1900),  partly  because  the  public  mind  is  oc- 
cupied with  matters  of  a  different  order,  partly  because  the  political  party  which 
professes  to  be  opposed  to  innovation  has  latterly  commanded  a  large  majority  in 
the  British  Legislature. 


FLEXIBLE  AND  RIGID  CONSTITUTIONS  205 

XV.  The  Future  of  the  Flexible  and  Rigid  Types. 

A  few  concluding  reflections  may  be  devoted  to  the 
probable  future  of  the  two  types  that  have  been  occu- 
pying our  minds.  Are  both  likely  to  survive?  or  if 
not,  which  of  the  two  will  prevail  and  outlast  the  other  ? 

Two  reasons  suggest  themselves  for  predicting  the 
prevalence  of  the  Rigid  type.  One  is  that  no  new  Flex- 
ible Constitutions  have  been  born  into  the  world  for 
many  years  pa$t,  unless  we  refer  to  this  class  those  of 
some  of  the  British  self-governing  colonies  *.  The  other 
is  that  no  country  now  possessing  a  Rigid  Constitution 
seems  likely  to  change  it  for  a  Flexible  one.  The  foot- 
steps are  all  the  other  way.  Flexible  Constitutions  have 
been  turned  into  Rigid  ones.  No  Rigid  one  has  become 
Flexible  2.  Even  those  who  complain  of  the  undue  con- 
servatism of  the  American  Constitution  do  not  propose 
to  abolish  that  Constitution  altogether,  nor  to  place 
it  at  the  mercy  of  Congress,  but  merely  to  expunge  parts 
of  it,  though  no  doubt  parts  which  (such  as  the  powers 
of  the  Judiciary)  have  been  vital  to  its  working. 

Against  these  two  arguments  may  be  set  the  fact  that 
popular  power  has  in  most  countries  made  great  ad- 
vances, and  does  not  need  the  protection  of  an  instru- 
ment controlling  the  legislature  and  the  executive,  which 
are  already  only  too  eager  to  bend  to  every  breeze  of 
popular  opinion.  If  we  lived  in  a  time  of  small  States,  as 
the  ancients  did,  the  people  would  themselves  legislate  in 
primary  assemblies.  Why  then,  it  may  be  asked,  should 
they  care  to  limit  the  powers  of  legislatures  which  are 
completely  at  their  bidding?  The  old  reasons  for  hold- 
ing legislatures  and  executives  in  check  have  disap- 
peared. Why  should  the  people,  safe  and  self-confident, 
impose  a  check  on  themselves?     In  this  there  may  be 

1  The  British  self-governing  Colonies  (except  the  two  great  federations,  see 
ante,  pp.  168-9)  have  constitutions  which  may  be  changed  in  all  or  nearly  all 
points  by  their  respective  legislatures,  but  they  are  not  independent  States,  and 
the  power  of  the  legislatures  to  alter  the  constitutions  is  therefore  not  complete. 

8  The  Constitution  of  Italy,  already  referred  to,  is  scarcely  an  exception. 


206  FLEXIBLE  AND  RIGID  CONSTITUTIONS 

some  truth.  But  it  must  be  remembered  that  since 
modern  States  are  larger  than  those  of  former  times, 
and  tend  to  grow  larger  by  the  absorption  of  the  small 
ones,  legislatures  are  necessary,  for  business  could  not 
be  carried  on  by  primary  popular  assemblies,  even  with 
the  aid  of  '  plebiscites.'  Now  legislatures  are  nowhere 
rising  in  the  respect  and  confidence  of  the  people,  and  it 
is  therefore  improbable  that  any  nation  which  has  a 
documentary  Constitution,  holding  its  legislature  in  sub- 
jection, will  abolish  it  for  the  benefit  of  the  legislature, 
although  it  may  wish  to  do  more  and  more  of  its  legisla- 
tion by  the  direct  action  of  the  people,  as  it  does  in 
Switzerland  and  in  some  of  the  States  of  the  American 
Union.  On  the  whole,  therefore,  it  seems  probable  that 
Rigid  Constitutions  will  survive  in  countries  where  they 
already  exist. 

Two  other  questions  remain.  Will  existing  Flexible 
Constitutions  remain  ?  Arc  such  new  States  as  may 
arise  likely  to  adopt  Constitutions  of  the  Rigid  or  of  the 
Flexible  type? 

An  inquiry  whether  countries  which,  like  Hungary 
and  Britain,  now  live  under  ancient  Flexible  Constitu- 
tions will  exchange  them  for  new  documentary  ones 
would  resolve  itself  into  a  general  study  of  the  political 
prospects  of  those  countries.  All  that  can  be  said,  apart 
from  such  a  study,  is  that  our  age  shows  no  such  general 
tendency  to  change  in  this  respect  as  did  the  revolu- 
tionary and  post-revolutionary  era  of  the  first  sixty 
years  of  the  nineteenth  century.  Still,  a  few  lines  may 
be  given  to  considering  whether  any  such  alteration  of 
form  is  likely  to  pass  on  the  Constitution  which  has  long 
had  the  unquestioned  pre-eminence  in  age  and  honour, 
that,  namely,  of  the  United  Kingdom,  which  is  really 
the  ancient  Constitution  of  England  so  expanded  as  to 
include  Scotland  and  Ireland. 

So  far  as  internal  causes  and  forces  are  concerned, 
this  seems  improbable.  The  people  are  not  likely,  de- 
spite the  alarms    felt    and   the   advice   tendered   by  the 


FLEXIBLE  AND  RIGID   CONSTITUTIONS  207 

uneasy  persons  to  whom  reference  has  already  been 
made,  to  part  with  the  free  play  and  elastic  power  of 
their  historical  Cabinet  and  Parliamentary  system.  Eng- 
land has  never  yet  made  any  constitutional  change  either 
on  grounds  of  theory  or  from  a  fear  of  evils  that  might 
arise  in  the  future.  All  the  modifications  of  the  frame  of 
government  have  been  gradual,  and  induced  by  actually 
urgent  needs. 

But  there  is  another  set  of  causes  and  forces  at  work 
which  may,  as  some  think,  affect  the  question.  It  has 
already  been  noted  that  Rigid  Constitutions  have  arisen 
where  States  originally  independent  or  semi-indepen- 
dent have  formed  Confederations.  These  States,  finding 
the  kind  of  connexion  which  treaties  had  created  insuffi- 
cient for  their  needs,  have  united  themselves  into  one 
Federal  State,  and  expressed  their  new  and  closer  rela- 
tion in  the  form  of  a  documentary  Constitution.  Such  a 
Constitution  has  invariably  been  raised  above  the  legis- 
lature it  was  creating,  because  the  States  which  were 
uniting  wished  to  guard  jealously  such  autonomy  as  they 
respectively  retained,  and  would  not  leave  those  rights 
at  the  mercy  of  the  legislature.  This  happened  in  the 
United  States  in  1787-9,  in  Switzerland  after  the  fall  of 
Napoleon,  in  Germany  when  the  North  German  Con- 
federation and  German  Empire  were  created  in  1866 
and  1870-71.  It  has  happened  also  in  Canada  and  in 
Australia. 

Two  proposals  of  a  federalizing  nature  have  recently 
been  made  regarding  the  United  Kingdom,  one  to  split 
it  up  into  a  Federation  of  four  States,  the  other  to  make 
it  a  member  of  a  large  Federation.  Neither  seems 
likely  to  be  carried  out  at  present,  but  both  are  worth 
mentioning,  because  they  illustrate  the  occasions  on 
which,  and  methods  by  which,  constitutions  may  be 
transformed.  The  United  Kingdom  stands  to  its  self- 
governing  Colonies  in  what  is  practically  a  permanent 
alliance  as  regards  all  foreign  relations,  these  relations 
being  managed  by  the  mother  country,  with  complete 


208  FLE.MIIU:   AM)   ItltUD   CONSTITUTIONS 

local  legislative  and  administrative  autonomy  both  for 
each  Colony  and  for  the  mother  country  '.  Many  think 
that  this  alliance  is  not  a  satisfactory,  and  cannot  well 
be  a  permanent,  form  of  connexion,  because  at  present 
almost  the  whole  burden — and  it  is  a  heavy  one — of 
naval  and  military  defence  falls  upon  Britain,  while  the 
Colonies  have  no  share  in  the  control  of  foreign  rela- 
tions, and  may  find  themselves  engaged  in  a  war,  or 
bound  by  a  treaty,  regarding  which  they  have  not  been 
consulted.  Thus  the  idea  has  grown  up  that  some  sort 
of  confederation  ought  to  be  established,  in  which  there 
would  be  a  Federal  Assembly,  containing  representa- 
tives of  the  (at  present  seven)  component  States  2,  and 
controlling  those  matters,  such  as  foreign  relations  and 
a  system  of  military  and  naval  armaments,  which  would 
be  common  to  the  whole  body.  If  this  idea  were  ever 
to  take  practical  shape,  it  would  probably  be  carried  out 
by  a  statute  establishing  a  new  Constitution  for  the  de- 
sired Confederation,  and  creating  the  Federal  Assembly. 
Such  a  statute  would  be  passed  by  the  Parliament  of 
the  United  Kingdom,  and  (being  expressed  to  be  opera- 
tive over  the  whole  Empire)  would  have  full  legal  effect 
for  the  Colonies  as  well  as  for  the  mother  country.  Now 
if  such  a  statute  assigned  to  the  Federal  Assembly  cer- 
tain specified  matters,  as  for  instance  the  control  of 
imperial  defence  and  expenditure  or  (let  us  say)  legisla- 
tion regarding  merchant  shipping  and  copyright,  taking 
them  away  from  the  present  and  future  British  Parlia- 
ment as  well  as  from  the  parliaments  of  the  several 
Colonies,  and  therewith  debarring  the  British  Parlia- 
ment from  recalling  or  varying  the  grant  except  by  the 

1  This  autonomy  is,  however,  not  legally  complete  as  regards  the  Colonics,  for 
the  mother  country  may,  though  she  rarely  docs,  disallow  colonial  legislation.  In 
Canada  the  Dominion  Legislature  cannot  affect  the  rights  of  the  several  Pro- 
vinces, the  power  to  do  so  remaining  with  the  Imperial  Parliament  whil  I1 
the  Confederation  Act  of  18^17.  So  too  under  the  Constitution  Of  the  Australian 
Commonwealth  the  rights  of  each  colony  are  protected  by  the  instrument  of 
federation. 

8  Viz.  the  United  Kingdom,  the  two  great  Colonial  Federations  (Canada  and 
Australia),  and  four  comparatively  small  self-governing  Colonies,  viz.  New  Zear 
land,  Cape  Colony,  Natal,  and  Newfoundland. 


FLEXIBLE  AM)   RIGID   CONSTITUTIONS  209 

consent  of  the  several  Colonies  (or  perhaps  of  the  Fede- 
ral Assembly  itself),  it  is  clear  that  the  now  unlimited 
powers  of  the  British  Parliament  would  have  been  re- 
duced. A  part  of  the  future  British  Constitution  would 
have  been  placed  beyond  its  control:  and  to  that  extent 
the  British  Constitution  would  have  ceased  to  be  a  Flex- 
ible one  within  the  terms  of  the  definition  already  given  1. 
Parliament  would  not  be  fully  sovereign;  and  if  either  the 
British  or  a  Colonial  Parliament  passed  laws  inconsist- 
ent with  statutes  passed  by  the  Federal  Assembly  in 
matters  assigned  to  the  latter,  the  Courts  would  have 
to  hold  the  transgressing  laws  invalid. 

Doubtless,  if  such  a  Federal  Constitution  were  estab- 
lished, a  Supreme  Court  of  Appeal  on  which  some  colo- 
nial judges  should  sit  would  be  thought  essential  to  it, 
and  questions  arising  under  the  Federation  Act  (as  to  the 
extent  of  the  powers  of  the  Federal  Assembly  and  other- 
wise) would  go  before  it,  sometimes  in  the  first  instance, 
sometimes  by  way  of  appeal  from  inferior  Courts. 

The  other  proposal  is  to  turn  the  United  Kingdom 
itself  into  a  Federation  by  erecting  England,  Scotland, 
Ireland,  and  Wales  into  four  States,  each  with  a  local 
legislature  and  ministry  controlling  local  affairs,  while  re- 
taining the  Imperial  Parliament  as  a  Central  or  Federal 
Legislature  for  such  common  affairs  as  belong  in  the 
United  States  to  Congress,  and  in  Canada  to  the  Domi- 
nion Parliament,  and  in  Australia  to  the  Commonwealth 
Parliament.  If  such  a  scheme  provided,  as  it  probably 
would  provide,  for  an  exclusive  assignment  to  the  local 
legislatures  of  local  affairs,  so  as  to  debar  the  Imperial 
Parliament  from  interfering  therewith,  it  would  destroy 
the  present  Flexible  British  Constitution  and  substitute 

1  It  may  of  course  be  observed  (see  p.  175,  ante)  that  the  British  Parliament, 
while  it  continues  to  be  elected  as  now,  may  be  unable  to  divest  itself  of  its  general 
power  of  legislating  tor  the  whole  Empire,  and  might  therefore  repeal  the  Act  by 
which  it  had  resigned  certain  matters  to  the  Federal  Assembly  and  resume  them 
for  itself.  This  is  one  of  those  apices  iuris  of  which  the  Romans  say  non  stmt 
iura  :  and  in  point  of  fact  no  Parliament  can  be  supposed  capable  of  the  breach 
of  faith  which  such  a  repeal  would  involve.  The  supposed  legal  difficulty  might 
however,  be  avoided  by  some  such  expedient  as  that  previously  suggested. 

14 


210  FLEXIBLE  AND   RICH)  CONSTITUTIONS 

a  Rigid  one  for  it.  Care  would  have  to  be  taken  to  use 
proper  legal  means  of  extinguishing  the  general  sove- 
reign authority  of  the  present  Parliament,  as  for  instance 
by  directing  the  elections  for  the  new  Federal  Legisla- 
ture to  be  held  in  such  a  way  as  to  effect  a  breach  of  con- 
tinuity between  it  and  the  old  Imperial  Parliament,  so 
that  the  latter  should  absolutely  cease  and  determine 
when  the  new  Constitution  came  into  force.  Upon  this 
scheme  also  it  would  be  for  the  Courts  of  Law  to  deter- 
mine whether  in  any  given  case  either  the  Federal  or  one 
of  the  Local  Legislatures  had  exceeded  its  powers. 

Some  persons  have  proposed  to  combine  both  these 
proposals  so  as  to  make  the  four  parts  of  the  United 
Kingdom  each  return  members,  along  with  the  Colonies, 
to  a  Pan-Britannic  Federal  Legislature,  and  to  place 
the  local  legislatures  of  Scotland,  for  instance,  or  Wales, 
in  a  line  with  those  of  the  Australian  Commonwealth  or 
New  Zealand.  On  this  plan  also  the  British  Constitu- 
tion would  become  a  Rigid  one. 

The  difficulties,  both  legal  and  practical,  with  which 
these  proposals,  taken  either  separately  or  in  conjunc- 
tion, are  surrounded,  are  greater  than  those  who  advo- 
cate them  have  as  yet  generally  perceived. 

XVI.   Are  New  Constitutions  Likely  to  Arise  ? 

The  remaining  question,  also  somewhat  speculative, 
relates  to  the  prospects  the  future  holds  out  to  us  of 
seeing  new  States  with  new  Constitutions  arise. 

New  States  may  arise  in  one  of  two  ways,  either  by 
their  establishment  in  new  countries  where  settled  and 
civilized  government  has  been  hitherto  unknown,  or  by 
the  breaking  up  of  existing  States  into  smaller  ones, 
fragments  of  the  old. 

The  opportunities  for  the  former  process  have  now 
been  sadly  curtailed  through  the  recent  appropriation 
by  a  few  great  civilized  States  of  some  two-thirds  of  the 
surface  of  the  globe  outside  Europe.    North  America  is 


FLEXIBLE  AND    RIGID   CONSTITUTIONS  211 

in  the  hands  of  three  such  States.  Central  and  South 
America,  though  the  States  are  all  weak  and  most  of 
them  small  in  population,  are  so  far  occupied  that  no 
space  is  left.  The  last  chance  disappeared  when  the 
Argentine  Republic  asserted  a  claim  to  Patagonia,  where 
it  would  have  been  better  that  some  North  European 
race  should  have  developed  a  new  colony,  as  the  Welsh 
settlers  were  doing  on  a  small  scale.  Australia  is  occu- 
pied. Asia,  excluding  China  and  Japan  in  the  East,  and 
the  two  dying  Musulman  powers  in  the  West,  is  virtu- 
ally partitioned  between  Britain  and  Russia,  with  France 
holding  a  bit  of  the  south-east  corner.  So  Africa  has 
now  been  (with  trifling  exceptions)  divided  between  five 
European  Powers  (Portugal,  England,  France,  Ger- 
many, Italy).  Thus  there  is  hardly  a  spot  of  earth  left 
on  which  a  new  independent  community  can  establish 
itself,  as  the  Greeks  founded  a  multitude  of  new  com- 
monwealths in  the  eighth  and  seventh  centuries  b.  c,  and 
as  the  Teutonic  invaders  founded  kingdoms  during  the 
dissolution  of  the  Roman  Empire. 

If  we  turn  to  the  possibilities  of  new  States  arising 
from  the  ruins  of  existing  ones,  whether  by  revolt  or  by 
peaceful  separation,  the  prospect  is  not  much  more  en- 
couraging. There  is  indeed  Turkey.  Five  out  of  the 
six  new  States  that  have  arisen  in  Europe  during 
this  century  have  been  carved  out  of  the  territories 
she  claimed — viz.  Greece,  Rumania,  Servia,  Bulgaria, 
Montenegro :  and  there  is  material  for  one  or  two  more 
in  Europe  and  possibly  for  one  or  two  in  Asia,  though  it 
is  more  probable  that  both  the  Asiatic  and  European 
dominions  of  the  Sultan  will  be  partitioned  among  exist- 
ing States  than  that  new  ones  will  spring  out  of  them. 
The  ill-compacted  fabric  of  the  Austro-Hungarian  mon- 
archy may  fall  to  pieces.  Parts  of  the  Asiatic  dominions 
of  Russia  may  possibly  (though  in  a  comparatively  dis- 
tant future)  become  independent  of  the  old  Muscovite 
motherland,  and  the  less  civilized  among  the  republics 
of  Central  and  South  America  may  be  broken  into  parts 


212  FLEXIBLE  AM)  TilCID   COXSTITUTIONB 

or  combined  into  new  States,  though  the  saving  '  plus 
cela  change,  plus  e'est  la  meme  chose  '  is  even  more  true 
of  those  countries  than  of  that  to  which  it  was  originally 
applied,  and  gives  little  hope  of  interesting  novelties. 
But  on  the  whole  the  tendency  of  modern  times  is  rather 
towards  the  aggregation  of  small  States  than  towards 
the  division  of  large  ones.  Commerce  and  improved 
facilities  of  communication  are  factors  of  constantly  in- 
creasing importance  which  work  in  this  direction,  and 
this  general  tendency  for  the  larger  States  to  absorb  the 
smaller  forbids  us  to  expect  the  rise,  within  the  next 
few  generations,  of  more  than  a  few  new  Constitutions 
which  will  provide  matter  for  study  to  the  historian  or 
lawyer  of  the  future. 

What  type  of  Constitution  will  these  new  States,  what- 
ever they  be  and  whenever  they  come,  be  disposed  to 
prefer?  Upon  this  point  it  is  relevant  to  observe  thai 
all  the  new  States  that  have  appeared  since  1850  have 
adopted  Rigid  Constitutions,  with  the  solitary  exception 
of  Montenegro,  which  has  no  Constitution  at  all,  but 
lives  under  the  paternal  autocracy  of  the  temporal  ruler 
who  has  succeeded  the  ancient  ecclesiastical  Vladika1. 
Each  of  them,  on  beginning  its  independent  life,  has  felt 
the  need  of  setting  out  the  lines  of  its  government  in  a 
formal  instrument  which  it  has  consecrated  as  funda- 
mental by  placing  it  above  ordinary  legislation.  Similar 
conditions  are  likely  to  surround  the  birth  of  any  new 
States,  similar  motives  to  influence  those  who  tend  their 
infancy.  The  only  cases  in  which  a  Flexible  Constitution 
is  likely  to  arise  would  be  the  division  of  a  country  hav- 
ing such  a  Constitution  into  two  or  more  fragments, 
each  of  which  should  cleave  to  the  accustomed  system ; 
or  the  revolt  of  a  people  or  community  among  whom,  as 
they  grow  into  a  State,  usages  of  government  that  had 
naturally  sprung  up  might,  when  independence  had  been 
established,  continue  to  be  observed  and  so  ripen  into  a 
Constitution.    The  chance  that  either  of  these  cases  will 

1  As  to  Italy,  however,  see  above,  pp.  171  and  176. 


FLEXIBLE  AND  RIGID  CONSTITUTIONS  213 

present  itself  is  not  very  great.  New  States  will  more 
probably  adopt  documentary  Constitutions,  as  did  the 
insurgent  colonies  of  England  after  1776  and  of  Spain 
after  181 1,  and  as  the  Christians  of  South-Eastern 
Europe  did  when  they  had  rid  themselves  of  the  Turk. 
Upon  the  whole,  therefore,  it  would  seem  that  the  future 
is  rather  with  Rigid  Constitutions  than  with  those  of  the 
Flexible  type. 

It  is  hardly  necessary  to  close  these  speculations  by 
adding  the  warning  that  all  prophecies  in  politics  must 
be  highly  conjectural.  Circumstances  change,  opinion 
changes ;  knowledge  increases,  though  the  power  of 
using  it  wisely  may  not  increase  *. 

The  subtlety  of  nature,  and  especially  the  intricacy  of 
the  relations  she  develops  between  things  that  originally 
seemed  to  lie  wide  apart,  far  surpasses  the  calculating 
or  predicting  wit  of  man.  Accordingly  many  things, 
both  in  the  political  arrangements  of  the  world  and  in 
the  beliefs  of  mankind,  which  now  seem  permanent  may 
prove  transitory.  Democracy  itself,  though  most  people 
treat  it  as  a  thing  likely  to  grow  stronger  and  advance 
further,  may  suffer  an  eclipse.  Human  nature  no  doubt 
remains.  But  human  nature  has  clothed  itself  in  the 
vesture  of  every  sort  of  institution,  and  may  change  its 
fashions  as  freely  in  the  future  as  it  has  done  in  the  past. 

i'AiravO'  6  fiaxpb?  Kavapi9p.r)T0i  \povoi 
<j>vtt.  t  &&rj\a  ko\  (pavevra.  KpvmeTai. 

Soph.  AjaXy  646. 


NOTE    TO    ESSAY    III 

CONSTITUTIONAL  AND  OTHER  GOVERN- 
MENTS 

The  races  and  nations  of  the  world  may,  as  respects 
the  forms  of  Government  under  which  they  live,  be  dis- 
tributed into  four  classes  : — 

I.  Nations  which  have  created  and  maintain  permanent 
political  institutions,  allotting  special  functions  to  each 
organ  of  Government,  and  assigning  to  the  citizens  some 
measure  of  participation  in  the  business  of  Government. 

In  these  nations  we  discover  Constitutions  in  the 
proper  sense  of  the  term.  To  this  class  belong  all  the 
States  of  Europe  except  Russia  and  Montenegro,  and, 
outside  Europe,  the  British  self-governing  Colonies,  the 
United  States  and  Mexico,  the  two  republics  of  South 
Africa,  Japan  and  Chili,  possibly  also  the  Argentine 
Republic. 

II.  Nations  in  which  the  institutions  aforesaid  exist  in 
theory,  but  are  seldom  in  normal  action,  because  they 
are  in  a  state  ot  chronic  political  disturbance  and  mostly 
ruled,  with  little  regard  to  law,  by  military  adventurers. 
This  class  includes  the  republics  of  Central  and  South 
America,  with  the  exception  of  Chili,  and  possibly  of 
Argentina,  whose  condition  has  latterly  been  tolerably 
stable. 

III.  Nations  in  which,  although  the  upper  class  is  edu- 
cated, the  bulk  of  the  population,  being  backward,  has 
not  begun  to  desire  such  institutions  as  aforesaid,  and 
which   therefore  remain   under  autocratic  monarchies. 


NOTE  TO  ESSAY  III  215 

To  this  class  belong  Russia  and  Montenegro.  Japan 
has  lately  emerged  from  it :  and  two  or  three  of  the 
newest  European  States  might,  but  for  the  interposition 
of  other  nations,  have  remained  in  it. 

IV.  Nations  which  are^  for  one  reason  or  another, 
below  the  level  of  intellectual  life  and  outside  the  sphere 
of  ideas  which  the  permanent  political  institutions  afore- 
said presuppose  and  need  for  their  proper  working. 
This  class  includes  all  the  remaining  peoples  of  the  world, 
from  intelligent  races  like  the  Chinese,  Siamese,  and  Per- 
sians, down  to  the  barbarous  tribes  of  Africa. 

Constitutions,  in  the  sense  in  which  the  term  is  used 
in  the  preceding  Essay,  belong  only  to  the  first  class, 
and  in  a  qualified  sense  to  the  second.  In  the  modern 
world  they  are  confined  to  Europe  and  her  Colonies, 
adding  Japan,  which  has  imitated  Europe.  In  the  ancient 
world  they  were  confined  to  three  races,  Greeks,  Italians, 
and  Phoenicians,  to  whom  one  may  perhaps  add  such 
races  as  the  Lycians,  who  had  learnt  from  the  Greeks. 
Their  range  is  somewhat  narrower  than  that  of  law,  that 
is  to  say,  there  are  peoples  which,  like  the  Musulmans 
of  Turkey,  Egypt,  and  Persia,  have  law,  but  have  no 
Constitutions. 

No  race  that  has  ever  lived  under  a  lost  Constitutional 
Government  has  permanently  lost  it,  except  those  parts 
of  the  Roman  Empire  which  now  form  part  of  the  Turk- 
ish Empire ;  and  the  Roman  Empire,  though  its  Govern- 
ment never  ceased  to  be  in  a  certain  sense  constitutional, 
ultimately  extinguished  the  habit  of  self-government 
among  its  subjects. 


IV 


THE    ACTION    OF    CENTRIPETAL 

AND  CENTRIFUGAL  FORCES  ON 

POLITICAL  CONSTITUTIONS  ■ 

As  every  government  and  every  constitution  is  the 
result  of  certain  forces  and  tendencies  which  bring  nun 
together  in  an  organized  community,  so  every  govern- 
ment and  every  constitution  tends  when  formed  to  hold 
men  together  thenceforth,  training  them  to  direct  their 
efforts  to  a  common  end  and  to  sacrifice  for  that  purpose 
a  certain  measure  of  the  exercise  of  their  individual 
wills.  So  strong  is  the  aggregative  tendency,  that  each 
community  naturally  goes  on  by  a  sort  of  law  of  na- 
ture to  expand  and  draw  in  others,  whether  persons  or 
groups,  who  have  not  previously  belonged  to  it :  nor  is 
physical  force  the  prime  agent,  for  the  great  majority  of 
mankind  prefer  some  kind  of  political  society,  even  one 
in  whose  management  they  have  little  or  no  share,  to 
mere  isolation.  As  this  process  of  expansion  and  aggre- 
gation continues,  the  different  political  groups  which  it 
has  called  into  being  come  necessarily  in  contact  with 
one  another.  The  weaker  ones  are  overcome  or  peace- 
fully absorbed  by  the  stronger  ones,  and  thus  the  number 
of  groups  is  continually  lessened.  Where  two  communi- 
ties of  nearly  equal  strength  encounter  each  other,  each 
may  for  a  time  succeed  in  resisting  the  attraction  of  the 

1  This  Essay  was  composed  in  the  early  part  of  1885.  It  has  been  revised 
throughout,  but  the  substance  remains  the  same. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         217 

other.  But  in  this  changeful  world  it  almost  always 
happens  that  sooner  or  later  one  becomes  so  much 
stronger  that  the  other  yields  to  it :  and  thus  in  course  of 
time  the  number  of  detached  communities,  i.e.  of  groups 
each  with  its  own  centre  of  attraction,  becomes  very 
small,  because  the  weak  have  been  swallowed  up  by  the 
strong.  This  is  the  general,  though,  as  we  shall  see,  not 
the  universal  course  of  events.  There  is  also  another 
force  at  work,  which  has  at  some  moments  in  history 
developed  great  strength. 

I.  How  the  Tendencies  to  Aggregation  and  to  Dis- 
junction  RESPECTIVELY   AFFECT    CONSTITUTIONS. 

Of  the  many  analogies  that  have  been  remarked  be- 
tween Law  in  the  Physical  and  Law  in  the  Moral  World, 
none  is  more  familiar  than  that  derived  from  the  New- 
tonian astronomy,  which  shows  us  two  forces  always 
operative  in  our  solar  system.  One  force  draws  the 
planets  towards  the  sun  as  the  centre  of  the  system,  the 
other  disposes  them  to  fly  off  from  it  into  space.  So  in 
politics,  we  may  call  the  tendency  which  draws  men  or 
groups  of  men  together  into  one  organized  community 
and  keeps  them  there  a  Centripetal  force,  and  that  which 
makes  men,  or  groups,  break  away  and  disperse,  a  Cen- 
trifugal. A  political  Constitution  or  frame  of  govern- 
ment, as  the  complex  totality  of  laws  embodying  the 
principles  and  rules  whereby  the  community  is  organized, 
governed,  and  held  together,  is  exposed  to  the  action  of 
both  these  forces.  The  centripetal  force  strengthens  it, 
by  inducing  men  (or  groups  of  men)  to  maintain,  and 
even  to  tighten,  the  bonds  by  which  the  members  of  the 
community  are  gathered  into  one  organized  body.  The 
centrifugal  assails  it,  by  dragging  men  (or  groups)  apart, 
so  that  the  bonds  of  connexion  are  strained,  and  possibly 
at  last  loosened  or  broken.  That  no  community  can  be 
exempt  from  the  former  force  is  obvious.  But  neither 
can  any  wholly  escape  the  latter.    For  every  community 


218         CENTRIPETAL   AND   CENTRIFLUAL   FORCES 

has  been  built  out  of  smaller  groups,  and  the  members 
of  such  groups  have  seldom  quite  lost  the  attraction 
which  each  had  to  its  own  particular  centre,  such  attrac- 
tion being  of  course  dissociative  as  regards  the  other 
groups  and  their  members1.  Moreover  in  no  large 
community  can  there  ever  be  a  complete  identity  of  views 
and  wishes,  of  interests  and  feelings,  between  all  the  mem- 
bers. Many  must  have  something  to  complain  of,  some- 
thing which  sets  them  against  the  rest  and  makes  them 
desire  to  be,  for  some  purposes,  differently  treated,  or 
(in  extreme  cases)  to  be  entirely  separated.  The  exist- 
ence of  such  a  grievance  constitutes  a  centre  round  which 
a  group  is  formed,  and  this  group  is  in  so  far  an  element 
of  disjunction.  Accordingly  the  history  of  every  com- 
munity and  every  constitution  may  be  regarded  as  a 
struggle  between  the  action  of  these  two  forces,  that 
which  draws  together  and  that  which  pushes  apart,  that 
which  unites  and  that  which  dissevers. 

This  subject,  it  may  be  thought,  belongs  either  to 
History,  in  so  far  as  history  attempts  to  draw  general 
conclusions  from  the  facts  she  records,  or  to  that  branch 
of  political  science  which  may  be  called  Political  Dyna^ 
mics,  and  is  one  with  which  the  constitutional  lawyer  is 
not  directly  concerned.  The  constitutional  lawyer,  how- 
ever, must  always,  if  he  is  to  comprehend  his  subject  and 
treat  it  fruitfully,  be  a  historian  as  well  as  a  lawyer.  His 
legal  institutions  and  formulae  do  not  belong  to  a  sphere 
of  abstract  theory  but  to  a  concrete  world  of  fact.  Their 
soundness  is  not  merely  a  logical  but  also  a  practical 
soundness,  that  is  to  say,  institutions  and  rules  must 
represent  and  be  suited  to  the  particular  phenomena  they 
have  to  deal  with  in  a  particular  country.  Tt  is  through 
history  that  these  phenomena  are  known.  History  ex- 
plains how  they  have  come  to  be  what  they  are.  History 
shows  whether  they  are  the  result  of  tendencies  still  in- 

1  In  the  pages  that  follow  the  word  Group  is  used  to  denote  the  section  of  prr- 
sons  within  a  larger  community  who  may  he  hold  together  hy  some  tie,  whether 
of  interest  or  sentiment  <>r  race  or  loral  habitation,  which  makes  them  a  sort  of 
minor  community  inside  the  larger  one. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         210 

creasing  or  of  tendencies  already  beginning  to  decline. 
History  explains  them  by  parallel  phenomena  in  other 
times  and  places.  Thus  the  lawyer  who  has  to  consider 
and  advise  on  any  constitutional  problem,  and  still  more 
the  lawyer  who  has  to  contrive  a  constitutional  scheme 
for  grappling  with  a  political  difficulty,  must  study  the 
matter  as  a  historian,  otherwise  he  will  himself  err  and 
mislead  those  whom  he  advises.  Great  lawyers  often 
have  so  erred,  and  with  lamentable  results.  A  lawyer 
who  shall  deal  with  a  constitutional  problem  as  he  would 
deal  with  a  technical  point  in  the  law  of  real  property  will 
be  as  much  astray  as  an  advocate  who  should  prosecute 
or  defend  a  political  prisoner  with  a  sole  regard  to  the  law 
of  treason  or  sedition  which  he  may  find  in  his  books, 
heedless  of  the  temper  and  opinion  of  those  from  among 
whom  the  jury  will  be  drawn. 

An  obvious  illustration  may  be  found  in  the  fact  that 
when  any  particular  community  is  studied  from  the 
constitutional  point  of  view,  and  the  inquiry  is  raised 
whether  it  ought  to  have  a  Flexible  or  a  Rigid  Constitu- 
tion, the  question  of  the  comparative  actual  strength  of 
these  two  forces  becomes  a  vital  one.  Where  the  centri- 
petal force  is  palpably  the  stronger,  either  sort  of  con- 
stitution will  do  to  hold  the  community  together :  and 
the  choice  between  the  two  sorts  may  be  made  on  other 
grounds.  But  where  the  centrifugal  force  is  potent,  and 
especially  where  there  are  reasons  to  apprehend  its 
further  development,  the  establishment  of  a  Rigid  Con- 
stitution may  become  desirable,  and  yet  may  be  a  matter 
of  much  delicacy  and  difficulty.  If  the  constitution  be 
framed  in  the  interests  of  a  centralizing  policy,  there  is 
a  danger  that  it  may  assume  and  require  for  its  mainte- 
nance a  greater  strength  in  the  centripetal  forces  than 
really  exists,  and  that  for  the  want  of  such  strength  the 
constitution  may  be  exposed  to  a  strain  it  cannot  resist. 
Amid  the  constant  change  of  phenomena,  a  Rigid  Con- 
stitution necessarily  represents  the  past,  not  the  present ; 
and  if  the  tendencies  actually  operative  are  towards  the 


•220         CENTRIPETAL  AND   CENTRIFUGAL   FORCES 

dissociation  of  the  component  groups  of  the  community, 
a  frame  of  government  which  fails  to  provide  scope  for 
these  tendencies  will  soon  become  out  of  date  and  unfit 
for  its  work.  Y\ 'here,  on  the  other  hand,  the  existence  of 
distinct  groups,  each  desiring  some  control  of  its  own 
affairs,  is  fully  perceived  and  duly  admitted  as  a  factor  in 
the  condition  of  the  community,  and  where  it  is  desired 
to  give  legal  recognition  to  the  fact,  and  to  protect  the 
other  local  groups  or  sub-communities  from  being  over- 
ridden by  the  largest  among  the  groups,  or  by  the  com- 
munity as  a  whole,  the  creation  of  a  Rigid  Constitution 
offers  a  valuable  means  of  securing  these  objects.  For 
such  a  constitution  may  be  so  drawn  as  to  place  the  local 
groups  under  the  protection  of  a  fixed  body  of  law,  mak- 
ing their  privileges  an  integral  part  of  the  frame  of  gov- 
ernment, so  that  the  whole  Constitution  must  stand  or 
fall  with  the  maintenance  of  the  rights  enjoyed  by  the 
groups  l.  The  familiar  instance  of  such  a  form  of  Rigid 
Constitution  is  a  Federal  Constitution.  It  is  specially 
adapted  to  the  case  of  a  country  where  the  centrifugal 
forces  are  so  strong  that  it  is  clear  that  the  groups  will 
not  consent  to  be  wholly  merged  and  lost  in  one  com- 
munity, as  under  a  Flexible  Constitution  might  befall 
them,  yet  where  they  are  sufficiently  sensible  of  the  ad- 
vantages of  combination  to  be  willing  to  enter  into  a 
qualified  and  restricted  union.  And  in  these  cases  it  has 
sometimes  proved  to  be  an  efficient  engine  for  further 
centralization.  That  is  to  say,  the  best  way  of  strength- 
ening in  the  long  run  the  centripetal  tendencies  has  been 
to  give  so  much  recognition  and  play  to  the  centrifugal 
as  may  disarm  them,  and  may  allow  the  causes  which 
make  for  unity  to  operate  quietly  without  exciting 
antagonism. 

It  appears  accordingly  that  the  historian  who  studies 
constitutions,  and  still  more  the  draftsman  who  frames 
them,  must  have  his  eye  constantly  fixed  on  these  two 

1  Subject  of  course  to  any  provisions  for  amending  the  Constitution  which  may 
have  been  inserted.     See  Essay  III,  \>.  176  Bqq. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES        221 

forces.  They  are  the  matter  to  which  the  legislator  has 
to  give  form.  They  create  the  state  of  things  which  a 
Constitution  has  to  deal  with,  so  laying  clown  principles 
and  framing  rules  as  on  the  one  hand  to  recognize  the 
forces,  and  on  the  other  hand  to  provide  safeguards 
against  their  too  violent  action.  Their  action  will  pre- 
serve or  destroy  the  Constitution, — preserve  it,  if  it  has 
given  them  due  recognition  and  scope,  destroy  it,  if  its 
provisions  turn  out  to  be  opposed  to  the  sweep  of  irre- 
sistible currents.  The  forces  that  move  society  are  to 
the  constructive  jurist  or  legislator  what  the  forces  of 
nature  are  (in  the  famous  Baconian  phrase)  to  man.  He 
is  their  servant  and  interpreter.  They  can  be  overcome 
only  by  obeying  them.  If  he  defies  or  misunderstands 
them,  they  overthrow  his  work.  If  he  knows  how  to 
use  them,  they  preserve  it.  But  his  difficulty  is  greater 
than  that  of  the  physicist,  because  these  social  forces  are 
more  complex  than  those  of  inanimate  nature,  and  vary 
in  their  working  from  generation  to  generation. 

II.    Tendencies  which  may  operate  either  as 
Centripetal  or  as  Centrifugal  Forces. 

Now  let  us  see  what  are  the  chief  among  the  tenden- 
cies which  in  political  society  are  capable  of  playing  the 
part  either  of  centripetal  or  of  centrifugal  forces. 

So  far  as  individual  men  are  concerned,  all  the  ten- 
dencies that  work  on  them  may  be  said  to  be  associative 
tendencies,  that  is  to  say,  every  thing  tends  to  knit  indi- 
vidual men  together  into  a  band  or  group,  and  to  make 
them  act  together.  The  repulsion  of  man  from  man  is  so 
rare  that  we  may  ignore  it.  Even  the  keenest  individual- 
ist desires  to  convert  other  men  to  his  individualism,  and 
forms  a  league  for  the  purpose  with  others  who  are  like- 
minded. 

As  regards  political  societies,  the  subject  wherewith 
we  are  here  concerned,  the  tendencies  I  am  going  to 
enumerate   may   be    either   associative   or   dissociative. 


•2-22        CENTRIPETAL    l  Y/»   CENTRIFUGAL   FORCES 

Whether  in  the  case  of  any  given  State  they  act  as 
agglutinative  and  consolidating  forces  or  as  splitting  and 
rending  forces  depends  npon  whether  they  are  at  the 
moment  giving  their  support  to,  or  are  enlisted  in  the 
service  of,  the  State  as  a  whole,  or  are  strengthening  the 
group  or  groups  inside  the  State  which  are  seeking  to 
assert  either  their  rights  within  the  State  or  their  inde- 
pendence of  it.  Even  obedience,  the  readiness  to  submit 
and  follow,  which  might  seem  primarily  a  centripetal 
force,  may  be  centrifugal  as  against  the  State  if  it  leads 
the  partisans  of  a  particular  recalcitrant  group  to  sur- 
render their  wills  to  the  leaders  of  that  group.  Even 
the  love  of  independence,  the  desire  to  let  each  man's 
individuality  have  full  scope,  may  act  as  a  centripetal 
force  if  it  disposes  men  to  revolt  against  the  tyranny  of 
a  faction  and  maintain  the  rights  and  interests  of  the 
whole  people  against  the  attempts  of  that  faction  to  have 
its  own  way.  There  are  always  two  centres  of  attrac- 
tion and  two  groupings  to  be  considered,  the  larger, 
which  we  call  the  State,  and  the  smaller,  which  may  be 
either  a  subordinate  community,  such  as  a  province, 
district  or  dependency,  or  only  a  party  or  faction.  And 
the  centripetal  force  which  draws  men  to  the  smaller 
centre  is  a  centrifugal  force  as  regards  the  larger. 

These  two  tendencies,  which  I  have  referred  to  as 
Obedience  and  Individualism,  are  so  familiar,  and  the 
former  is  a  disposition  of  human  nature  so  generally 
pervasive,  as  to  need  no  further  discussion.  The  other 
tendencies  which  may  operate  either  centrifugally  or 
centripetally  may  be  classed  under  the  two  heads  of  In- 
terest and  Sympathy.  Under  the  head  of  Interest  there 
fall  all  those  influences  which  belong  to  the  sphere  of 
Property,  including  of  course  Industry  and  Commerce 
as  means  of  acquiring  property.  These  influences  usu- 
ally make  for  consolidation  and  assimilation.  It  is  a  gain 
to  the  trader  or  the  producer  that  the  area  of  consumers 
which  he  supplies  without  the  hindrance  of  an  interposed 
customs  tariff  should  be  as  wide  as  possible.    It  is  a  gain 


CENTRIPETAL  AX1)   CENTRIFUGAL   FORCES         223 

that  communications  by  sea  and  land  should  be  safe, 
easy,  swift,  and  cheap,  and  these  objects  are  better  se- 
cured in  a  large  country  under  a  strong  government. 
It  is  a  gain  that  coinage,  weights,  and  measures  should 
be  uniform  over  the  largest  possible  area  and  that  the 
standard  of  the  currency  should  be  upheld.  It  is  a  gain 
that  the  same  laws  and  the  same  system  of  courts  should 
prevail  in  every  part  of  a  State — and  the  larger  the  State 
the  better,  so  far  as  these  matters  are  concerned — and 
that  the  law  should  be  steadily  enforced  and  complete 
public  order  secured.  All  these  things  make  not  only  for 
the  growth  of  industry  and  the  spread  of  trade,  but  also 
for  the  value  of  all  kinds  of  property.  And  all  these  in- 
fluences, derived  from  the  consideration  of  such  gains, 
which  play  upon  the  citizen's  mind,  are  usually  aggre- 
gative influences,  disposing  him  to  desire  the  extension 
of  the  State  and  the  strength  of  its  central  authority. 
Considerations  of  Interest,  therefore,  usually  operate  as 
a  centripetal  force.  It  was  through  commercial  interests 
that  the  States  of  Germany  were,  after  the  fall  of  the  old 
Romano-Germanic  Empire,  drawn  into  that  Zollverein 
which  became  a  stage  towards,  and  ultimately  the  basis 
of,  the  present  German  Empire.  It  was  the  increase  of 
trade,  after  the  union  of  Scotland  and  England,  that  by 
degrees  reconciled  the  Scotch  to  a  measure  which  was 
at  first  most  unpopular  among  them  as  threatening  to 
extinguish  their  national  existence.  It  is  the  absence 
of  any  strong  commercial  motives  for  political  union 
that  has  hampered  the  efforts  of  those  who  have 
striven,  so  far  successfully,  to  keep  Norway  and  Sweden 
united. 

In  exceptional  cases,  however,  the  influences  of  Inter- 
est may  be  centrifugal.  A  particular  group  of  traders  or 
landowners,  for  instance,  living  in  a  particular  district, 
may  think  they  will  gain  more  by  having  the  power  to 
enact  special  laws  for  the  conduct  of  their  own  affairs  or 
for  the  exclusion  of  competing  persons  than  they  will  by 
entering  or  by  remaining  under  the  uniform  system  of  a 


224        CENTRIPETAL   AND   CENTRIFUGAL  FORCES 

large  State1.  Trade  considerations  counted  for  some- 
thing- in  making  the  planters  of  the  Slave  States  of 
America  desire  to  sever  themselves  from  a  government 
in  which  the  protectionist  party  was  generally  dominant. 
It  is  partly  on  economic  grounds  that  the  various 
provinces  of  the  Cis-Leithanian  part  of  the  Austro- 
Hungarian  Monarchy  have  been  allowed,  and  desire 
to  maintain,  each  its  autonomy.  It  was  largely  a  diver- 
gence of  economic  views  and  interests  that  so  long 
deterred  the  free  trade  colony  of  New  South  Wales 
from  linking  its  fortunes  in  a  federation  with  the  pro- 
tectionist colonies ;  nor  were  there  wanting  industrial 
grounds  which  made  the  adhesion  of  Queensland  long 
doubtful. 

To  the  head  of  Sympathy  we  must  refer  all  the  influ- 
ences which  flow  not  from  calculation  and  the  desire  of 
gain,  but  from  emotion  or  sentiment.  The  sense  of 
community,  whether  of  belief,  or  of  intellectual  convic- 
tion, or  of  taste,  or  of  feeling  (be  it  affection  or  aversion 
towards  given  persons  or  things),  engenders  sympathy, 
and  draws  men  together.  To  the  same  class  belong  the 
recognition  of  a  common  ancestry,  the  use  of  a  common 
speech,  the  enjoyment  of  a  common  literature.  The  im- 
portance of  these  factors  has  often  been  exaggerated. 
Some  of  the  keenest  Irish  revolutionaries  have  been 
English  by  blood  and  Protestants  by  faith.  The  Border- 
ers of  Northumberland  and  those  of  Berwickshire  did 
not  hate  one  another  less  because  they  were  of  the  same 
stock  and  spoke  the  same  tongue.  The  Celts  of  Inver- 
ness-shire and  the  Teutons  of  Lothian  are  now  equally 
enthusiastic  Scotchmen,  though  they  disliked  and  de- 
spised one  another  almost  down  to  the  days  of  Walter 

1  The  case  of  Ireland  shows  the  same  forces  of  industrial  or  commercial  in- 
terest, real  or  supposed,  operating  partly  as  centripetal,  partly  as  centrifugal. 
The  Nationalist  party  conceive  that  economic  benefits  would  result  from  a  local 
legislature,  which  could  aid  local  industries.  The  mercantile  class,  especially  in 
the  north-eastern  part  of  the  island,  fear  commercial  loss  from  anything  which 
could  hamper  their  trade  intercourse  with  Scotland  and  England,  or  which  might 
be  deemed  prejudicial  to  common  lal  i  redit.  With  the  soundness  of  either  view  1 
am  not  concerned  ;  it  is  sufficient  to  note  the  facts. 


CENTRIPETAL  AXD   CEXTRIFUGAL  FORCES        225 

Scott 1.  Mere  identity  of  origin  does  not  count  for  much, 
as  witness  the  ardent  Hungarian  patriotism  of  most  of 
the  Germans  and  Jews  settled  in  Hungary,  with  perhaps 
no  drop  of  Magyar  blood  in  their  veins.  Community  of 
language  does  not  any  more  than  a  common  ancestry 
necessarily  make  for  love,  and  indeed  may  increase 
hatred,  because  in  an  age  of  newspapers  each  of  two  dis- 
putant parties  can  read  the  injurious  things  said  of  it  by 
the  other.  Civil  wars  are,  like  family  quarrels,  prover- 
bially embittered.  Tocqueville  wrote,  in  1833,  that  he 
could  imagine  no  more  venomous  hatred  than  the  Amer- 
icans then  felt  for  England.  So  it  may  be  said  that 
though  the  want  of  these  elements  of  community  is  usu- 
ally an  obstacle  to  unity,  their  presence  is  no  guarantee 
for  its  existence.  Somewhat  greater  value  belongs  to 
identity  of  traditions  and  historical  recollections,  and  to 
the  possession  of  the  materials  for  a  common  pride  in 
past  achievements.  Most  men  find  a  personal  satisfac- 
tion and  take  a  personal  pride  in  recalling  the  feats  and 
struggles  of  the  nation,  or  the  tribe,  or  the  party,  or  the 
sect,  to  which  they  belong,  so  the  recollection  of  exploits 
or  sufferings  becomes  an  effective  rallying  point  for  a 
group.  We  all  know  how  powerful  a  force  such  memo- 
ries have  been  at  various  times  in  stimulating  national 
feeling  in  Italy,  in  Germany,  in  Hungary,  in  Scotland, 
in  Portugal,  in  Ireland. 

Still  less  necessary  is  it  to  dwell  upon  the  influence  of 
Religion,  which,  as  it  touches  the  deepest  chords  of 
man's  nature,  is  capable  of  educing  the  maximum  of 
harmony  or  discord.  No  force  has  been  more  efficient 
in  knitting  factions  and  States  together,  or  in  breaking 
them  up  and  setting  the  parts  of  a  State  in  fierce  an- 
tagonism to  one  another.  Religion  held  together  the 
Eastern  Empire,  originally  a  congeries  of  diverse  races, 
in  the  midst  of  dangers  threatening  it  from  every  side  for 

1  A  curious  survival  of  the  dislike  of  the  Lowlander  to  the  Highlander  may  be 
found  in  Carlyle's  comments  upon  the  Highland  wife  of  his  friend  Thomas  Camp- 
bell the  poet. 

15 


226         CENTRIPETAL  AM)   CENTRIFUGAL  FORCES 

eight  hundred  years.  Religion  now  holds  together  the 
Turkish  Empire  in  spite  of  the  hopeless  incompetence 
of  its  government.  Religion  split  up  the  Romano-Ger- 
manic Empire  after  the  time  of  Charles  the  Fifth.  The 
instances  of  the  Jews  and  the  Armenians  are  even  more 
familiar. 

There  remains  a  large  and  rather  miscellaneous  cate- 
gory of  sources  of  sympathy  which  we  may  call  by  the 
general  name  of  Elements  of  Compatibility.  Traits  of 
character,  ideas,  social  customs,  similarity  of  intellectual 
culture,  of  tastes,  and  even  of  the  trivial  usages  of  daily 
life,  all  contribute  to  link  men  together,  and  to  assimilate 
them  further  to  one  another,  as  the  absence  of  these 
things  tends  to  differentiation  and  dissimilation,  because 
it  supplies  points  in  which  the  members  of  one  group, 
racial  or  local  or  social,  feel  themselves  out  of  touch  with 
the  members  of  another,  and  possibly  inclined  to  show 
contempt,  or  to  think  themselves  contemned,  on  the 
ground  of  the  divergence.  The  natural  repulsion  which 
the  Germans  usually  feel  for  the  Slavs,  and  the  Slavs 
for  the  Germans,  seems  to  have  its  root  in  a  difference  of 
character  and  temperament  which  makes  it  hard  for 
either  race  to  do  full  justice  to  the  other.  That  repulsion 
is  powerfully  operative  to-day  in  the  Austrian  Empire. 
In  the  ancient  world  the  obstinate  and  passionate  Egyp- 
tians seem  to  have  displayed,  and  provoked,  a  similar 
antagonism  in  their  contact  with  other  races,  and  par- 
ticularly with  the  arrogant  Persians. 

These  influences  of  Sympathy,  like  those  of  Interest, 
may  figure  either  as  centripetal  or  centrifugal  forces, 
according  as  the  centre  round  which  they  group  and 
towards  which  they  draw  men  is  the  main  centre  of  that 
larger  circle  represented  by  the  State  or  the  centre  of 
the  smaller  circle  represented  by  the  tribe,  the  district, 
the  province,  the  faith,  the  sect,  the  faction.  The  same 
feeling  may  play  the  one  part  or  the  other  according  to 
the  accident  of  individual  view,  or  taste,  or  environment. 
Thus  in  a  University  consisting  of  a  number  of  autono- 


CENTRIPETAL  AID   CENTRIFUGAL  FORCES         227 

mous  colleges,  one  man  may  be  a  centralizer,  and  seek 
to  bring  the  colleges  into  subordination,  pecuniary  and 
administrative,  to  the  University,  while  another  man 
may  desire  to  maintain  their  independence,  and  yet  both 
may  set  a  high  value  on  corporate  spirit,  and  be  filled 
with  it  themselves.  In  one  man  this  spirit  clings  to 
the  college,  in  another  it  glorifies  the  University.  The 
patriotism  which  makes  a  Magyar  desire  that  Hungary 
should  absorb  Croatia,  and  that  which  makes  a  Croat 
desire  to  sever  his  country  from  Hungary,  are  essen- 
tially the  same  sentiment,  though,  as  regards  the  mon- 
archy of  the  Hungarian  Crown,  the  sentiment  operates 
with  the  Magyar  as  an  attractive,  with  the  Croat  as  a 
repulsive  force.  This  statement  is  generally  true  of  that 
complex  feeling,  based  upon  affinities  of  race,  of  speech, 
of  literature,  of  historic  memories,  of  ideas,  which  we 
call  the  Sentiment  of  Nationality,  a  sentiment  compara- 
tively weak  in  the  ancient  world  and  in  the  Middle  Ages, 
and  which  did  not  really  become  a  factor  of  the  first 
moment  in  politics  till  the  religious  passions  of  the  six- 
teenth and  seventeenth  centuries  had  almost  wholly  sub- 
sided, and  the  gospel  of  political  freedom  preached  in  the 
American  and  French  Revolutions  had  begun  to  fire 
men's  minds.  As  regards  the  historical  States  of  Europe, 
it  is  a  sentiment  which  is  both  aggregative  and  segre- 
gative. It  has  contributed  to  create  the  German  Em- 
pire :  yet  it  is  also  a  sentiment  which  makes  Bavaria 
unwilling  to  merge  in  that  Empire  her  individual  exist- 
ence. In  Bavaria,  and  still  more  in  the  case  of  Scotland, 
which  had  a  long  and  brilliant  national  history,  the  senti- 
ment of  local  has  been  found  compatible  with  a  senti- 
ment of  imperial  patriotism. 

It  is  a  remarkable  feature  of  recent  times  that  the 
tendency  of  a  common  interest  to  draw  groups  together 
and  make  them  prize  the  unity  of  the  State  is  often 
accompanied  by  the  parallel  development  of  an  opposite 
tendency,  based  on  sentiment,  to  intensify  the  life  of  the 
smaller  group  and  in  so  far  to  draw  it  apart,  and  thereby 


228         CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

weaken  the  unity  of  the  State.  This  arises  from  the 
fact  that  the  march  of  civilization  is  material  on  the  one 
hand,  intellectual  and  moral  on  the  other.  So  far  as  it  is 
material,  it  generally  makes  for  unity.  On  its  intellec- 
tual and  social  or  moral  side  it  works  in  two  ways.  It 
tends  to  break  down  local  prejudices  and  to  create  a 
uniform  type  of  habits  and  character  over  a  wide  area. 
But  it  also  heightens  the  influence  of  historical  memo- 
ries. It  is  apt  to  rekindle  resentment  at  old  injuries. 
Filling  men's  minds  with  the  notion  of  social  and  politi- 
cal equality,  it  disposes  them  to  feel  more  keenly  any 
social  or  political  inferiority  to  which  they  may  be  sub- 
jected. Raising  the  estimate  they  set  upon  themselves 
as  individuals  and  as  a  race,  it  makes  them  more  bold  in 
organizing  themselves  and  claiming  what  they  deem 
their  rights.  And  so  one  notes  the  singular  phenomenon 
that  men  are  stirred  to  disaffection,  or  impelled  towards 
separation,  by  grievances  less  acute  than  those  which 
their  ancestors,  sunk  in  ignorance  and  despondency, 
bore  almost  without  a  murmur.  The  Roman  Catholic 
Irish  since  1782  and  the  Transylvanian  Rumans  since 
1848  are  instances  in  point. 

All  these  tendencies,  pulling  this  way  and  that,  are 
among  the  facts  which  a  given  Constitution  has  to  deal 
with,  are  forces  which  it  must  use  in  order  to  secure  its 
own  strength  and  permanence.  Where,  in  a  free  country, 
the  system  of  government  has  grown  up  naturally,  and 
can  be  readily  modified  by  the  normal  action  of  the 
normal  sovereign  authority,  i.e.  where  the  Constitution 
is  a  Flexible  one,  the  presumption  is  that  the  rules  and 
usages  of  the  Constitution  conform  to  and  represent  the 
actual  forces,  and  draw  strength  therefrom.  Yet  even 
in  countries  governed  on  this  system  there  is  a  risk  that 
the  Constitution  which  the  will  of  a  majority  has  estab- 
lished may  leave  a  minority  discontented  and  unrestful, 
and  that  such  discontent  and  unrest  may  impede  the 
working  of  the  machinery  and  create  an  element  of  in- 
stability.   In  such  countries,  it  may  be  the  part  of  wis- 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         229 

dom  for  the  majority  to  yield  something  to  the  minority, 
modifying  the  Constitution,  so  far  as  it  can  safely  be 
modified,  in  order  to  remove  the  obstacles  to  harmony. 
A  centrifugal  force  which  is  not  strong  enough  to  dis- 
rupt the  State,  because  the  centripetal  forces  are  on  the 
whole  more  powerful,  may  nevertheless  be  able  to  cause 
a  harmful  friction,  and  may  even,  if  the  State  be  exposed 
to  external  attacks,  become  a  source  of  peril.  Every- 
body can  now  see  that  Rome  ought  to  have  admitted 
the  Italian  allies  to  the  franchise  long  before  the  Social 
War,  that  Catholic  Emancipation  ought  to  have  been 
enacted  by  the  Irish  Parliament  in  1796  or  by  the  British 
Parliament  immediately  after  the  Union  of  1800,  that 
Denmark  ought  not  to  have  waited  till  1874  before  she 
conceded  a  qualified  autonomy  to  Iceland,  that  the  same 
country  might  probably  have  retained  Schleswig-Hol- 
stein  if  she  had  yielded  long  before  the  war  of  1864  some 
of  the  demands  made  by  the  German  inhabitants  of  those 
duchies.  And,  if  we  may  apply  the  same  principle  to 
despotically  governed  countries,  most  people  will  agree 
that  Austria  ought  to  have  retired  from  Lombardy  be- 
fore 1859,  and  that  the  Turks  gained  nothing  by  cling- 
ing to  Bulgaria,  and  may  be  gaining  nothing  now  by 
clinging  to  Macedonia. 

III.    How   Constitutions  may   use   the  Centripetal 
Forces  to  promote  National  Unity. 

As  we  are  here  dealing  with  constitutions  considered 
in  their  relation  to  the  forces  and  tendencies  that  rule  in 
politics  (i.e.  as  a  part  of  political  dynamics),  we  may  now 
inquire  what  it  is  that  Constitutions  can  accomplish  in 
the  way  of  regulating  or  controlling  these  forces. 

Every  political  Constitution  has  three  main  objects. 

One  is  to  establish  and  maintain  a  frame  of  govern- 
ment under  which  the  work  of  the  State  can  be  efficiently 
carried  on,  the  aims  of  such  a  frame  of  government 
being  on  the  one  hand  to  associate  the  people  with  the 


230       ci:\Th'ii'i:r\L    \\n  ci:\TL'irt  <;.\l  FOkCES 

government,  and,  on  the  other  hand,  to  preserve  public 
order,  to  avoid  hasty  decisions  and  to  maintain  a  tolera- 
ble continuity  of  policy. 

Another  is  to  provide  due  security  for  the  rights  of 
the  individual  citizen  as  respects  person,  property,  and 
opinion,  so  that  he  shall  have  nothing  to  fear  from  the 
executive  or  from  the  tyranny  of  an  excited  majority. 
This  object  has  fallen  into  the  background  since  these 
rights  came  to  be  fully  recognized.  But  in  earlier  times 
it  was  the  chief  purpose  of  constitutional  provisions 
from  Magna  Charta  down  to  the  Bill  of  Rights  and  the 
Declaration  of  Independence.  The  safeguard  for  these 
rights  which  the  Constitution  of  England  provided,  was 
the  thing  which,  more  perhaps  than  anything  else,  moved 
the  admiration  of  foreign  observers  who  studied  that 
constitution  during  the  eighteenth  century. 

The  third  object  is  to  hold  the  State  together,  not 
only  to  prevent  its  disruption  by  the  revolt  or  secession 
of  a  part  of  the  nation,  but  to  strengthen  the  cohesive- 
ness  of  the  country  by  creating  good  machinery  for 
connecting  the  outlying  parts  with  the  centre,  and  by 
appealing  to  every  motive  of  interest  and  sentiment  that 
can  lead  all  sections  of  the  inhabitants  to  desire  to  re- 
main united  under  one  government. 

In  pursuing  these  objects,  a  constitution  seeks  to 
achieve  by  means  of  legal  provisions  that  which  in  ruder 
times  it  was  often  necessary  to  accomplish  by  physical 
force.  No  doubt  at  all  times  the  natural  disposition  to 
obey  (the  sources  of  which  I  have  analysed  elsewhere  ]) 
was  an  agent  more  constant  and  effective  than  physical 
force.  Nevertheless,  the  latter  was  needed,  sometimes 
from  the  side  of  the  government  to  maintain  order  and 
compel  subjects  to  bear  their  share  of  the  public  bur- 
dens, sometimes  from  the  side  of  the  subjects  to  abate 
the  abuses  into  which  the  possession  of  power  tempts 
rulers.  Troops  to  keep  order  and  quell  revolts,  and 
men  handy  with  their  weapons  and  ready  to  rise  in  insur- 

1  See  Essay  IX,  p.  467  sqq. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         231 

rection  to  dethrone  bad  monarchs  or  expel  bad  minis- 
ters, were  a  necessary  part  of  the  equipment  of  political 
societies  in  the  ruder  ages. 

A  good  constitution  relieves  the  government  from 
the  necessity  of  frequently  resorting  to  military  force  by 
securing  that  those  who  govern  shall  be  persons  ap- 
proved by  the  bulk  of  the  citizens,  as  well  as  by  providing 
for  the  purposes  of  coercion  machinery  so  promptly 
and  effectively  applicable,  that  the  elements  of  disturb- 
ance either  do  not  break  forth  or  are  quickly  suppressed. 
Similarly  it  relieves  the  subjects  from  the  need  of  rising 
in  rebellion  by  providing  machinery  whereby  the  com- 
plaints of  those  who  think  themselves  aggrieved  shall 
be  fully  made  known,  and  shall,  if  well  founded,  have 
due  effect  on  the  rulers  by  warning  them  to  remove  the 
grievances,  or  by  displacing  them  if  they  fail  to  do  so. 

How  constitutional  machinery  should  be  framed  and 
worked  for  the  attainment  of  the  two  former  objects 
enumerated  above,  viz.  the  establishment  of  a  proper 
frame  of  government  and  the  safeguarding  of  private 
rights,  is  a  matter  which  does  not  fall  within  the  scope 
of  our  present  inquiry.  The  third  object  does,  so  we 
have  to  ask  how  a  constitution  should  be  framed  in  order 
to  enable  it  to  maintain  and  strengthen  the  unity  of  a 
State. 

It  may  do  this  in  two  ways.  One  is  by  setting  various 
centripetal  forces  to  work.  The  other  is  by  preventing 
all  or  some  of  the  centrifugal  forces  from  working. 

I  have  already  enumerated  the  tendencies  or  influ- 
ences which  operate  to  draw  men  together  and  bind 
them  into  a  community,  be  it  greater  or  smaller,  and 
have  pointed  out  that  these  tendencies  may  in  any  given 
case  operate  in  favour  either  of  the  State  as  a  whole,  in 
which  case  they  preserve  it,  or  in  favour  of  some  group 
or  section  within  it,  in  which  case  they  sap  its  unity.  Let 
us  now  consider  how  the  constitutional  arrangements 
of  a  State  may  be  so  devised  as  to  draw  together  all  its 
members  and  all  the  minor  groups  within  it. 


232         CENTRIPETAL    l\/>   CE\TNI  Fl  (1AL   FORCES 

The  most  generally  available  of  these  centripetal  ten- 
dencies is  trade,  that  interchange  of  commodities  which 
benefits  all  the  producers,  by  giving  them  a  market,  all 
the  consumers  by  giving  them  the  means  of  getting 
what  they  want,  all  the  middlemen  by  supplying  them 
with  occupation.  A  Constitution  can  render  no  greater 
service*  to  the  unity  as  well  as  to  the  material  progress 
of  a  nation  than  by  enabling  the  freest  interchange  of 
products  to  go  on  within  its  limits.  Nothing  did  more 
to  keep  the  districts  of  each  of  the  great  European 
countries  divided  during  the  Middle  Ages  than  the  levy- 
ing of  tolls  along  the  rivers  and  highways  by  petty  po- 
tentates, or  than  the  insecurity  of  those  rivers  and  high- 
ways, as  well  as  the  want  of  good  roads,  for  thus  the 
market  for  the  producers  of  the  cheaper  articles  was 
narrowed  to  the  small  area  immediately  around  them, 
and  men  were  prevented  from  realizing,  or  benefiting 
by,  the  greatness  of  the  country  they  belonged  to.  Eng- 
land, with  an  exceptionally  strong  and  centralized  gov- 
ernment, suffered  less  from  these  tolls  and  this  insecu- 
rity than  did  the  large  States  of  the  Continent,  and 
England  arrived  at  un^ty  sooner  than  they  did.  And  so, 
conversely,  nothing  has  done  more  to  unify  the  vast  ter- 
ritories of  the  United  States  than  the  provisions  of  the 
Federal  Constitution  which  secure  perfect  freedom  of 
trade  within  its  limits,  and  empower  the  National  Gov- 
ernment to  regulate  the  means  of  communication  be- 
tween the  several  States  of  the  Union.  So  the  Customs 
Union  of  the  Germanic  StateSj  formed  under  the  au- 
spices of  Prussia  in  a.d.  1829,  did  a  great  work  in  stimu- 
lating industry,  while  it  showed  the  people  the  benefits 
of  united  action,  and  prepared  the  way  for  the  formation 
of  the  new  German  Empire. 

Another  influence  of  moment  is  the  establishment  of 
a  common  law  and  a  common  system  of  courts.  It  is 
not  an  influence  which  can  be  reckoned  on  so  invariably 
or  confidently  as  can  the  influence  of  commerce,  for  any 
hasty  attempt  to  change  the  law  (whether  customary  or 


CENTRIPETAL  AND  CENTRIFUGAL  FORCES         233 

statutory)  to  which  men  are  accustomed  may  provoke 
resistance  and  retard  the  growth  of  unity.  Great  Britain 
has  wisely  forborne  to  impose  her  own  law  on  the  do- 
minions she  has  acquired  by  conquest  or  purchase. 
Roman-Dutch  law  remains  in  South  Africa,  in  Ceylon, 
and  in  Guiana ;  Roman-French  law  in  Lower  Canada. 
So  the  French  Code  was  left  in  force  not  only  in  Alsace- 
Lorraine  which  Germany  took  in  1871  but  also  in  the 
German  country  all  along  the  left  bank  of  the  Lower 
Rhine,  when  that  region  was  reunited  to  Germany  in 
18 14.  So  Roman  law  has  remained  in  Louisiana,  which 
was  once  French.  But  where  one  legal  system  can, 
without  exciting  resentment,  be  extended  over  the  whole 
of  a  country,  it  becomes  a  valuable  unifying  force.  As 
respects  the  substance  of  law,  this  happens  by  the  forma- 
tion of  certain  habits  of  thought  and  action,  certain  ideas 
of  justice  and  utility.  As  respects  the  administration  of 
law,  it  happens  by  giving  to  the  central  executive  an 
engine  for  making  its  power  felt,  and  usually  felt  for 
good.  In  the  Middle  Ages,  the  jurisdiction  of  the  king's 
courts  was  found  the  most  effective  means  both  in  Eng- 
land, from  Henry  II  onward,  and  (somewhat  later)  in 
France,  of  extending  the  power  of  the  central  govern- 
ment and  accustoming  the  people  to  rally  round  the 
Crown  as  the  representative  of  national  unity  as  well  as 
of  justice.  A  somewhat  similar  process  has  been  in  pro- 
gress during  the  last  thirty  years  among  those  petty 
principalities  which  we  call  the  Laos  States,  and  which 
lie  to  the  north  of  the  kingdom  of  Siam.  The  princes  of 
these  States  were  practically  independent,  living  in  a 
country  of  forests  and  hills,  and  recognizing  only  a  vague 
titular  suzerainty  as  vested  in  the  Siamese  king  at  Bang- 
kok. But  when  foresters  from  British  Burma  had  come 
among  them,  desiring  to  cut  down  and  export  the  teak 
trees  in  those  forests  which  make  their  only  wealth,  and 
when  disputes  had  arisen  between  the  Laos  chiefs  and 
these  timber  traders,  the  Government  of  India  found  it 
needful  to  make  treaties  with  the  king  of  Siam,  under 


234        CENTRIPETAL  AND  CENTRIFUGAL   FORCES 

which  a  Court  presided  over  by  Siamese  officials  was 
set  up  in  Chiengmai,  the  principal  State.  By  means  of 
this  Court  the  Siamese  Government  has  been  able  gradu- 
ally to  obtain  complete  control  of  the  forest  administra- 
tion and  the  revenues  thence  arising,  and  incidentally  to 
strengthen  its  general  authority  over  these  Laos  States. 

Similarly,  the  jurisdiction  of  the  British  Privy  Council 
as  a  Supreme  Court  of  Appeal  from  the  Colonies  and 
India,  and  the  action  of  the  Supreme  Court  of  the  United 
States  as  the  final  Court  of  Appeal  for  the  whole  Union 
(in  certain  classes  of  cases),  have  done  something  to 
make  the  members  of  these  vast  political  aggregates 
realize  the  bond  that  links  them  together.  In  the  case 
of  the  United  States,  respect  for  the  Federal  Courts  and 
the  keen  interest  with  which  their  development  of  the 
law  by  judicial  interpretation  is  followed  by  a  large  and 
powerful  profession  has  been  an  important  factor  in 
strengthening  the  sense  of  national  unity. 

After  law,  religion,  not  as  less  potent,  for  it  is  more 
potent,  but  as  more  uncertain,  because  it  has  been  as 
often  a  dissevering  as  a  unifying  influence.  There  is, 
however,  a  marked  distinction  between  the  earlier  and 
the  later  forms  of  religion  as  regards  the  energy  of  the 
force  they  exert.  In  the  earlier  stages  of  civilization, 
when  tradition  and  ritual  counted  for  much,  and  abstract 
theology  had  not  yet  come  into  being,  the  worship  of  the 
gods  of  the  nation  or  city  was  a  part,  a  necessary  and 
sometimes  the  most  deep-rooted  part,  of  the  political 
constitution  and  the  national  life.  In  Egypt  the  rise  or 
fall  of  a  great  deity  is  often  the  sign  of  the  rise  or  fall 
of  a  dynasty.  Moab,  Edom,  and  Amnion,  are  each  the 
people  of  a  peculiar  God.  After  the  Captivity,  when 
the  minor  Semitic  peoples  decline  or  vanish,  Israel  con- 
tinues to  be  held  together  by  the  name  of  Jehovah,  and 
by  the  Law  He  has  given.  Every  Greek  and  every  Ita- 
lian city  has  its  own  distinctive  public  State  worship.  A 
race  sometimes  pays  special  honour  to  one  out  of  its 
various    deities,   and    the    devotion   of   the    Dorians    to 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         235 

Apollo,  of  the  Athenians  to  the  Virgin  Goddess,  finds  a 
mediaeval  parallel  in  that  of  the  Swedes  to  Odin,  of  the 
Norwegians  to  Thor.  As  the  Roman  Empire  included 
so  many  races  and  cities  that  no  one  deity  or  group  of 
deities  could  be  worshipped  by  all,  altars  were  erected 
to  the  Goddess  Rome,  and  the  Guardian  Spirit  or  Genius 
of  the  reigning  Emperor  became  a  common  object  of 
devotion  for  the  whole  mass  of  his  subjects.  In  modern 
times  the  strong  religions  are  (except  Hinduism)  World 
Religions,  and  therefore  not  national  or  local  as  were 
those  of  antiquity.  But  they  exert  an  even  greater  po- 
litical power.  For  monotheistic  religions,  however  they 
may  develop  into  elaborate  rites  and  forms  of  ceremonial 
observance,  are  primarily  philosophical  religions,  in 
which  abstract  ideas  and  beliefs  take  not  only  a  firm  but 
an  exclusive  grasp  of  the  mind  and  heart  of  whosoever 
holds  them.  Hence  they  form  a  closer  tie  than  did  the 
worships  of  the  ancient  Italo-Hellenic  world.  Christian- 
ity created  a  new  cohesion  when  the  provinces  of  the 
Roman  Empire  were  beginning  to  fall  asunder.  Islam 
formed  a  prodigious  dominion  out  of  many  diverse  peo- 
ples. The  mutually  hostile  forms  of  a  World  Religion, 
such  as  the  Sunnite  and  Shiite  sects  in  Islam,  act  as  con- 
solidating or  dissevering  influences  just  as  the  religion 
itself  did  before  schisms  had  arisen.  When  a  faith 
grounded  in  peculiar  dogmas  or  observances  is  held  by 
one  section  of  a  people  and  hated  by  another  section, 
it  becomes  a  formidably  centrifugal  force.  When  the 
great  mass  of  a  people  have  embraced  such  a  faith,  their 
political  cohesion  is  strengthened,  and  they  may  attract 
from  other  communities  persons  or  groups  who  share 
their  beliefs.  The  same  principle  applies  to  beliefs 
which  cannot  be  called  religious,  but  which  exert  a 
similar  power  over  men's  emotions.  Even  where  no 
question  of  the  supernatural  is  involved,  the  holding  in 
common  of  certain  ideas  deemed  supremely  valuable 
whether  for  the  individual  or  for  society,  may  operate 
as  a  centrifugal  or  centripetal  force. 


236        CENTRIPETAL  AND  CENTRIFUGAL  FORCES 

A  nation  with  a  national  religion  which  all  or  nearly 
all  citizens  cherish  possesses  a  bond  of  unity  which  grows 
the  more  powerful  the  more  its  traditions  become  en- 
twined with  the  national  life.  It  is  chiefly  the  influence  of 
the  Orthodox  Church  that  has  made  a  people  so  low  in 
the  scale  of  civilization  as  Russia  was  three  centuries 
ago,  to-day  so  united,  so  strong  through  its  union, and  so 
submissive  to  its  sovereign,  for  it  is  not  less  as  Head 
of  the  Church  than  as  a  secular  prince  that  the  Czar 
commands  the  reverence  of  his  subjects  *.  Accordingly, 
whenever  a  State  Church  can  be  set  up  which  embraces 
practically  the  whole  of  the  people,  and  when  it  can  be 
associated  with  the  government  and  the  movements  of 
public  life,  the  cohesion  of  the  nation  and  the  power  of 
the  government  which  controls  the  church  will  be  in- 
creased. Of  the  possibly  pernicious  influence  of  such 
arrangements  on  such  a  church  and  on  religion  I  do  not 
speak ;  that  is  quite  another  matter.  I  am  only  pointing 
out  that  a  Constitution  will  gain  strength,  and  a  nation 
unity,  if  the  ecclesiastical  arrangements  can  be  linked  to 
those  of  the  secular  government,  assuming  the  people 
to  be  all  attached  to  the  same  form  of  faith  and  worship. 

Similarly,  in  so  far  as  those  who  frame  a  Constitution 
can  make  it  provide  a  system  of  education  which  will 
give  the  people  common  ideas  and  common  aspirations, 
in  so  far  as  they  can  persuade  the  inhabitants  to  use  a 
common  language,  if  the  country  is  one  where  more  than 
one  tongue  has  been  spoken,  or  even  to  enjoy  and  meet 
for  the  enjoyment  of  common  festivities  and  games,  they 
will  be  availing  themselves  of  influences  not  to  be  de- 
spised. The  Prussian  Government  founded  the  Uni- 
versity of  Bonn  immediately  after  the  recovery  of  the 
left  bank  of  the  Rhine  from  France  in  1814,  and  the 
University  of  Strassburg  immediately  after  the  recovery 
of  Alsace  in  1871,  in  both  cases  with  the  view  of  bene- 

1  There  are  of  course  dissenting  sects  in  Russia,  some  of  them  counting  many 
adherent*,  but  they  have  seldom,  and  in  no  large  measure,  affected  the  political 

unity  of  the  nation. 


CENTRIPETAL  AND  CENTRIFUGAL  FORCES         237 

fiting  these  territories  and  of  drawing  them  closer  to 
the  rest  of  the  country  by  the  afflux  of  students  from 
other  parts  of  it,  an  aim  which  was  realized.  Indeed  the 
non-local  character  of  the  German  Universities,  each 
serving  the  whole  of  the  lands  wherein  the  German 
tongue  was  spoken,  powerfully  contributed  to  intensify 
the  sentiment  of  a  common  German  nationality  through- 
out the  two  centuries  (1648  to  1870)  during  which  Ger- 
many had  virtually  ceased  to  be  a  State.  The  Olympian, 
Pythian,  Isthmian,  and  Nemean  games  had  no  con- 
temptible effect  in  fostering  the  sentiment  of  a  common 
national  unity,  as  against  the  barbarians,  among  the 
Greeks,  who  had  never  enjoyed  and  did  not  desire  politi- 
cal union.  The  admission  of  the  Macedonian  king  to 
strive  at  the  Olympian  games  was  a  political  event  of 
high  significance,  for  it  enabled  his  descendants  Philip 
and  Alexander  the  Great  to  claim  to  belong  to  the  Hel- 
lenic race. 

Some  of  these  various  engines  for  promoting  the  co- 
hesion of  a  nation  may  seem  to  lie  rather  in  the  sphere 
of  governmental  action  than  in  that  of  a  Constitution. 
Commercial  freedom,  however,  as  well  as  religious  com- 
pulsion on  the  one  hand,  or  religious  freedom  on  the 
other  hand,  have  been  provided  for  by  some  Rigid  Con- 
stitutions. So  too  has  been  the  use  of  certain  languages. 
Where  the  Constitution  is  a  Flexible  one,  the  question 
whether  the  laws  regulating  such  matters  are  to  be 
deemed  a  part  of  the  Constitution  depends  entirely  on 
the  practical  importance  ascribed  to  them,  since  in  such 
a  Constitution  there  is  no  distinction  of  form  between 
fundamental  and  other  provisions. 

IV.    How  Constitutions  may   Reduce  or   Regulate 
the  Centrifugal  Forces. 

Now  let  us  see  what  Constitutions  may  effect  in  the 
other  of  the  two  above  specified  ways,  viz.  what  they 
may  do  to  meet  and  grapple  with,  and  if  possible  disarm, 


238        CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

the  tendencies  which  make  for  disruption,  i.e.  the  forces 
which,  while  drawing  men  together  in  minor  groups 
within  the  State,  are  as  regards  the  State  itself  centri- 
fugal forces. 

What  are  these  tendencies  ?  History  tells  us  that  the 
chief  among  them  are  race  feeling,  resentment  for  past 
injuries,  grievances  in  respect  of  real  or  supposed  ill- 
treatment  in  matters  of  industry,  or  of  trade,  or  of  edu- 
cation, or  of  language,  or  of  religion,  where  these  griev- 
ances or  any  ot  them  press  on  a  part  only  of  the  popu- 
lation. If  they  press  on  the  whole  population,  or  on  the 
humbler  classes  as  a  whole,  they  are  perturbing,  but 
not  necessarily  nor  even  probably  disruptive,  i.e.  they 
threaten  disaffection  or  a  general  revolt  against  the  gov- 
ernment, rather  than  the  severance  of  a  particular  pro- 
vince or  the  secession  of  a  particular  section  of  the 
people.  It  is  only  with  grievances  which  affect  one  sec- 
tion or  district,  and  make  it  desire  an  independence  to 
be  obtained  by  separation,  that  we  have  here  to  deal. 
There  must  be  in  every  such  case  either  a  sentiment  of 
dislike  on  the  part  of  the  disaffected  section  towards  the 
rest  of  the  nation,  or  else  a  belief  that  great  material  ad- 
vantages will  be  obtained  by  separation ;  and  the  latter 
of  these  causes  is  almost  sure  to  produce  the  former. 
When  two  or  more  of  these  tendencies  combine  in  any 
given  case,  so  much  the  stronger  does  the  desire  for 
separation  become. 

A  few  illustrations  will  explain  better  than  a  long  ab- 
stract statement  what  I  desire  to  convey.  In  the  ancient 
world  the  thing  which  we  call  National  Sentiment  was 
seldom  a  powerful  factor,  perhaps  because  the  more  ad- 
vanced peoples  were  divided  into  small  city  communities, 
while  the  backward  peoples,  living  under  large  empires 
like  the  Persian  or  that  of  the  Seleucid  kings,  were 
allowed  to  retain  their  own  customs  and  religion,  and 
often  their  native  princes,  feeling  the  weight  of  subjec- 
tion only  in  having  to  pay  tribute  and  send  a  contingent 
in  war.    The  only  nations  that  gave  much  trouble  to  the 


CENTRIPETAL  AXD   CENTRIFUGAL   FORCES         239 

Achaemenid  kings  of  Persia  were  the  Egyptians,  a  race 
very  peculiar  and  very  conceited,  and  the  Greeks  of  Asia 
Minor.  Under  the  Roman  Empire  there  were  wonder- 
fully few  national  revolts,  probably  because  the  imperial 
government  pressed  equally  upon  all,  conceded  rights  of 
citizenship  pretty  freely,  and  gave  the  subjects  in  ex- 
change for  their  own  national  sentiment  the  higher  pride 
of  belonging  to  the  majestic  World  State  which  had  en- 
gulfed them.  The  chief  source  of  disruptive  attempts 
lay  in  the  monotheistic  religions.  The  Jews  made  more 
than  one  obviously  hopeless  rebellion.  When  Chris- 
tianity became  the  religion  of  the  Empire,  schisms  and 
heresies  gave  trouble.  Africa  was  convulsed  by  the 
Donatist  movement.  Egypt  was  disaffected  owing  to 
Monophysitism,  and  no  doubt  gave  herself  the  more 
readily  to  the  Arab  conquerors  in  respect  of  this  dis- 
affection. The  persecuted  Montanist  sectaries  of  Phry- 
gia  revolted  in  the  sixth  century.  It  was  the  religious 
persecution  of  the  Fire-worshipping  Sassanid  kings  that 
provoked  their  Armenian  vassals  to  rebellion1.  So  in 
the  fifteenth  and  sixteenth  centuries,  the  sentiment  of 
nationality  having  not  yet  reached  its  full  strength,  it 
was  chiefly  by  religious  divisions  that  the  unity  of  States 
was  threatened.  This  was  what  lost  the  Dutch  Nether- 
lands to  Spain.  This  was  what  split  up  the  Romano- 
Germanic  Empire,  and  made  it,  after  the  Thirty  Years' 
War,  the  mere  shadow  of  a  State.  It  contributed  to 
keep  the  Highlanders  distinct  from  the  Lowland  popu- 
lation of  Scotland  after  the  Reformation  (though  other 
causes  also  were  at  work),  and  it  was  of  course  a  still 
more  potent  force  in  Ireland.  In  our  own  time  it  nearly 
rent  Switzerland  in  two  in  the  war  of  the  Sonderbund. 
Conversely,  any  one  who  notices  how  little  the  unity 
of  the  nation  has  been  threatened  in  Spain,  a  country 
where  the  populations  and  dialects  of  the  different  pro- 
vinces still  present  striking  contrasts,  and  are  accom- 

1  The  dualistic  Zoroastrianism  of  Persia  seems  to  have  taken  many  of  the  cha- 
racteristics of  a  monotheistic  religion. 


240         CENTRIPETAL  AND  CENTRIFUGAL  roh'CES 

panied  by  diversities  of  character,  will  be  disposed  to 
attribute  this  fact  not  merely  to  the  absence  of  natural 
boundaries  between  the  provinces,  but  also  to  the  re- 
markable religious  unity  which  the  nation  has  always 
preserved. 

In  our  own  time,  while  religion  is  a  less  energetic 
factor,  what  is  called  national  sentiment  has  begun  to 
threaten  loosely  compacted  States.  It  compelled  the 
transformation  in  1868  of  the  so-called  Austrian  Empire 
into  the  present  Dual  Monarchy.  It  shakes  the  Austrian 
half  of  that  monarchy  now,  so  sharp  is  the  antagonism 
between  the  Czechs  of  Bohemia  and  the  other  Slavic 
populations  of  Cis-Leithania  and  the  Germans  of  the 
Western  and  South-Western  Crown  Lands.  Iceland 
differs  from  Denmark,  with  which  she  has  been  politi- 
cally united  since  i38o(or  1397), in  language, in  character, 
and  in  habits,  and  she  has  therefore  struggled  for  au- 
tonomy, a  large  measure  of  which  she  obtained  in  1874. 
She  has  had  some  economic  grievances,  but  sentiment 
has  been  an  even  stronger  element  in  her  discontent, 
which,  however,  stopped  short  of  a  wish  to  separate,  as 
she  feels  herself  too  small  to  stand  alone.  A  strong 
party  in  Norway  has  desired  to  be  divorced  from  Swe- 
den, to  which  she  was  unnaturally  yoked  in  1814  by  the 
Congress  of  Vienna,  not  merely  in  respect  of  specific 
complaints  regarding  the  Foreign  Office  and  the  consu- 
lar service,  but  also  because  her  people,  though  Luther- 
ans like  the  Swedes,  are  far  more  democratic  in  ideas 
and  temper  than  the  latter,  and  because  their  high  na- 
tional pride  makes  them  unwilling  to  appear  to  be  in 
any  way  subordinate  to  the  sister  kingdom.  The  case 
of  Poland  is  a  simple  one,  because  she  has  the  memory  of 
an  independent  kingdom  destroyed  by  force  and  fraud, 
and  is  different  in  religion,  as  well  as  in  speech,  from  the 
Russians  who  have  annexed  her.  Had  the  peasant  popu- 
lation of  the  country  shared  the  patriotism  of  the  upper 
and  middle  classes,  Poland  might  possibly  have  suc- 
ceeded in  shaking  off  the  yoke.    Even  now  her  disaffee- 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         241 

tion  is  a  source  of  weakness  to  Russia.  In  Ireland 
several  currents  of  discontent  have  joined  to  produce  the 
passion  and  prolong  the  struggle  for  autonomy,  or,  in  a 
very  few  of  the  more  ardent  minds,  for  independence. 
There  is  the  diversity  of  faith,  which  remains, though  that 
of  language  has  almost  vanished,  a  diversity  embittered 
by  recollections  of  persecution.  There  are  economic 
grievances,  the  memory  of  the  destruction  of  an  industry 
in  the  last  century,  the  more  urgent  resentment  at  the 
exactions  of  landlords,  and  the  peasants'  desire  to  have 
a  grip  of  the  soil.  There  is  an  incompatibility  of  cha- 
racter and  temperament,  due  partly  to  historical  condi- 
tions, partly  to  the  old  antagonism  of  Celt  and  Teuton. 
All  these  have  gone  to  create  a  passion  among  the  people 
to  be  recognized  as  a  nation  controlling  its  own  affairs, 
a  passion  which  is  the  same  in  essence  among  those  who 
would  be  content  with  the  possession  of  a  subordinate 
legislature,  and  those,  now  fewer  than  formerly,  who 
would  like  to  go  further. 

If  the  sources  of  the  centrifugal  force  in  Ireland  are 
easily  explicable,  and  indeed  so  strong  that  had  this  force 
acted  upon  the  whole  nation  instead  of  only  upon  a  ma- 
jority which  consists  mainly  of  the  poorer  and  weaker 
part  of  the  population,  it  would  have  before  now  pre- 
vailed, those  which  induced  the  secession  of  the  South- 
ern States  of  America  are  much  less  evident.  Here 
there  was  no  religious  factor,  nor  any  revengeful  feeling, 
nor  any  sense  of  an  unjust  or  oppressive  control.  The 
South  had  obtained  more  than  its  fair  share  of  power 
and  influence  in  the  councils  of  the  Union.  But  the 
planters  had  persuaded  themselves  that  property  in 
slaves  and  the  whole  slave-holding  system  were  threat- 
ened by  the  growing  strength  in  the  Northern  and  West- 
ern States  of  an  aversion  to  slavery,  with  a  determina- 
tion to  check  its  extension ;  and  the  irritation  of  feeling 
which  a  long  struggle  had  engendered,  coupled  with  a 
growing  dissimilarity  of  habits  and  ideas,  enabled  the 
hot-headed  oligarchy  which  controlled  the  Southern 
16 


•2)2         CENTRIPETAL   AND   CENTRIFUGAL   FORCES 

population  to  drive  it  into  separation.  Possibly  these 
causes  would  not  have  been  strong  enough  to  provoke 
an  armed  conflict  in  a  unified  country.  It  was  the  exist- 
ence of  State  Governments,  and  the  conviction  that  the 
rights  of  the  States,  supposed  to  be  guaranteed  by  the 
Constitution,  furnished  a  legal  basis  for  secession,  that 
spurred  the  South  into  its  desperate  venture. 

What  then  can  the  framing,  or  the  manipulation  in 
working,  of  a  Constitution  do  to  reduce  the  power  of 
such  disruptive  tendencies  as  we  have  been  considering? 

They  may  of  course  be  resisted  by  the  employment 
of  physical  force.  If  a  government  is  sufficiently  strong 
and  resolute,  and  is  supported  by  the  great  majority  of 
the  nation,  it  may  crush  down  the  discontent  of  a  pro- 
vince or  a  section.  It  is  however  an  axiom  in  free  gov- 
ernments, and  ought  to  be  an  axiom  in  all  governments, 
that  physical  force  should  never  be  used  when  peaceful 
means  will  suffice.  Coercion  usually  seems  easier,  and 
naturally  commends  itself  to  the  dull,  the  impatient,  and 
the  violent,  to  imperious  princes,  arrogant  ministers,  and 
excited  majorities.  But  coercion,  besides  being  a  fatal 
expedient  if  it  fails,  is  often  a  bad  expedient  when  it  ap- 
pears to  succeed,  for  it  leaves  smouldering  discontent 
behind  among  the  vanquished,  and  it  is  apt  to  inflict  a 
moral  injury  upon  the  victors,  perhaps  to  warp  for  the 
future  their  frame  of  government  and  to  lower  their  po- 
litical traditions.  Accordingly  whenever  a  Constitution 
can  be  so  drawn  and  worked  as  to  give  the  disjunctive 
tendencies  just  so  much  recognition  as  may  disarm  their 
violence,  and  bring  all  sections  of  the  nation  and  all 
parts  of  the  country  to  acquiesce  in  unity  under  one  gov- 
ernment, this  course  is  to  be  preferred.  It  may  some- 
times fail.  Every  expedient  may  fail.  But  it  has  gene- 
rally more  promise  of  ultimate  success  than  force  has, 
for  in  a  free  country  force  is  not  a  remedy,  but  a  confes- 
sion of  past  failures  and  a  postponement  of  dangers 
likely  to  recur. 

Among  the  methods  which  a  Constitution  may  em- 


CENTRIPETAL  AND   CENTRIFUGAL   FORCES         243 

ploy  for  the  purpose  indicated,  the  following  find  a 
place. 

It  may  enact  certain  securities  against  oppression, 
whether  by  the  executive  or  by  the  legislature,  giving 
to  such  securities  a  specially  solemn  sanction,  and  thus 
reassuring  the  minds  of  the  citizens.  This  was  done  by 
Magna  Charta,  by  the  Petition  of  Right,  and  again  by 
the  American  Federal  and  State  Constitutions,  and  by 
the  French  Declaration  of  the  Rights  of  Man  of  1789. 
It  is  usually  done  for  the  protection  of  all  subjects  or  citi- 
zens alike,  but  of  course  the  benefit  of  such  a  protection 
enures  with  special  value  for  any  section  of  the  popula- 
tion, or  any  province  or  group  of  provinces,  likely  to  be 
specially  exposed  at  any  given  time  to  the  abuses  of 
power,  because  they  are  a  minority  whom  the  Govern- 
ment, or  the  majority,  may  view  with  disfavour. 

A  Constitution  may  provide  means  for  varying  the 
general  institutions  or  laws  of  the  State  in  such  a  way 
as  to  exempt  particular  parts  of  the  State  from  any  legis- 
lation that  might  be  opposed  to  their  special  interests  or 
feelings.  The  retention  of  Scotland  as  a  distinct  king- 
dom after  the  union  of  the  crowns  in  1603,  and  as  a  dis- 
tinct part  of  the  United  Kingdom  after  the  Treaty  and 
Act  of  Union  in  1707,  has  had  most  beneficial  effects  in 
enabling  Scotland  to  be  treated  separately  where  it  is 
fitting  she  should  be.  Her  faith,  her  laws  and  judicature, 
her  system  of  local  government,  have  remained  almost 
intact,  to  the  satisfaction  of  her  people,  and  with  no  in- 
jury to  the  cohesion  of  the  united  monarchy  1.  Similarly 
the  maintenance  of  Finland  as  a  separate  Grand  Duchy, 
with  her  own  tongue,  religion,  laws  and  privileges,  gua- 
ranteed by  the  coronation  oath  of  the  Czar,  has  made 
the  Finns  loyal  and  contented  subjects,  and  has  in  no 
wise  detracted  from  the  strength  of  Russia  2.    The  cases 

1  Though  it  must  be  admitted  that  the  passing  of  legislation  disapproved  by 
the  majority  of  Scotch  representatives,  or  the  omission  to  pass  legislation  which 
they  demand,  often  elicits  murmurs. 

2  This  wise  policy  seems  unfortunately  to  be  now  (1900")  on  the  point  of  being 
abandoned,  with  results  which  every  lover  of  freedom  and  progress  must  regret. 


•_>H         CENTRIPETAL  AND  CENTRIFUGAL   FORCEB 

of  Hungary  as  towards  the  Austrian  Monarchy,  and  of 
Croatia  as  towards  Hungary,  are  also  in  point. 

It  may  provide  for  relegating  certain  classes  of  affairs 
to  local  legislatures,  such  as  those  of  Croatia  or  Finland, 
areas  which  are  not  only,  like  Scotland,  political  divi- 
sions retaining  their  old  laws,  but  also,  unlike  Scotland, 
since  the  Union,  communities  enjoying  local  autonomy. 
All  Federations  are  managed  on  this  system ;  and  one 
can  see  in  the  case  of  Canada  the  advantages  it  secures, 
for  the  Roman  Catholics  of  Quebec  are  able  to  have 
legislation  diverse  from  that  which  the  Protestant  ma- 
jority desires  in  the  other  provinces  of  the  Dominion. 

It  may  assign  certain  administrative  and,  within  limits, 
certain  legislative  functions  also  to  the  inhabitants  of 
minor  local  areas,  such  as  counties,  empowering  them 
to  regulate  their  local  affairs  in  their  own  way.  Pro- 
visions of  this  nature  are  not  usually  embodied  in  Euro- 
pean constitutional  instruments.  They  are,  however,  to 
be  found  in  the  State  Constitutions  of  the  American 
States.  And  they  are  really,  in  substance,  parts  of  any 
well-framed  Constitution,  for  nothing  contributes  more 
to  the  smooth  working  of  a  central  government  and  to 
the  satisfaction  of  the  people  under  it,  than  the  habit  of 
leaving  to  comparatively  small  local  communities  the 
settlement  of  as  many  questions  as  possible.  The  prac- 
tice of  local  self-government  and  the  love  for  it  are  not  a 
centrifugal  force,  but  rather  tend  to  ease  off  any  friction 
that  may  exist  by  giving  harmless  scope  for  independent 
action,  and  thus  producing  local  contentment.  It  is  only 
where  there  exist  grievances  fostering  disruptive  senti- 
ments that  the  existence  of  local  bodies  with  a  pretty 
large  sphere  of  activity  need  excite  disquiet. 

It  may  exclude  certain  matters  altogether  from  the 
competence  of  the  central  government,  and  thereby  keep 
them  out  of  the  range  of  controversy.  This  principle 
has  been  wisely  followed  in  the  American  and  Canadian 
and  Swiss  Federal  Constitutions  as  regards  religion  in 
its  relations  to  the  Slate.     In  some  federations  it  has 


CENTRIPETAL  ASD  CENTRIFUGAL  FORCES         245 

been  similarly  found  desirable  to  disable  the  several 
legislatures  from  dealing  with  topics  likely  to  produce 
dissensions  among  the  members  of  the  federation,  or 
otherwise  to  affect  the  cohesion  of  the  nation.  Thus  in 
the  United  States  no  State  legislature  can  impose  any 
duties  on  goods  brought  from  one  State  to  another,  nor 
in  any  wise  interfere  with  commerce  between  the  States. 

By  these  means  a  Constitution  may  prevent  the  dis- 
ruptive forces  in  a  country  from  threatening  the  stability 
of  the  central  government  or  the  unity  of  the  State.  To 
remove  part  of  the  material  on  which  they  might  work 
is  to  weaken  their  working,  and  to  divert  into  safe  chan- 
nels the  political  activity  they  would  evoke.  Although  a 
Flexible  Constitution  may  accomplish  this,  if  those  who 
work  it  respect  certain  fundamental  principles  and  treat 
their  querulous  minorities  in  a  conciliatory  spirit,  the 
work  is  best  done,  and  usually  has  been  done,  by  a  Rigid 
Constitution,  because  this  latter  provides  a  guarantee 
to  minorities,  or  to  subdivisions  of  the  country,  stronger 
than  they  can  have  under  an  omnipotent  legislature.  In 
fact  the  existence  of  the  grounds  of  contention  and  possi- 
bilities of  disruption  we  have  been  considering  is  among 
the  chief  causes  which  have  called  Federal  Governments 
and  Rigid  Constitutions  into  being. 

One  further  observation  should  be  made  before  quit- 
ting this  part  of  the  subject.  Racial  differences  and  ani- 
mosities, which  have  played  a  large  part  in  threatening 
the  unity  of  States,  are  usually  dangerous  only  when  the 
unfriendly  races  occupy  different  parts  of  the  country. 
If  they  live  intermixed,  in  tolerably  equal  numbers,  and 
if  in  addition  they  are  not  of  different  religions,  and 
speak  the  same  tongue,  the  antagonism  will  disappear  in 
a  generation  or  two  by  social  intercourse  and  especially 
by  intermarriage.  When  the  right  of  full  legal  inter- 
marriage had  been  established,  the  fusion  of  the  patri- 
cians and  the  plebs  at  Rome  began.  So  the  Northmen 
in  the  tenth  and  eleventh  centuries,  so  the  Norman- 
French  in  the  eleventh  and  twelfth  centuries,  became 


246        CENTRIPETAL  AXD   CENTRIFUGAL   FORCES 

blent  with  the  English.  The  Magyars  and  Saxons, 
though  generally  occupying  different  parts  of  the 
country,  and  to  some  extent  retaining  each  their  own 
speech,  have  in  Transylvania  now  begun  to  melt  into 
one.  It  is  the  fact  that  they  not  only  speak  a  different 
tongue  but  also  profess  a  different  faith  that  keeps  the 
Rumans  of  that  province  apart  from  both  Saxons  and 
Magyars ;  and  even  these  differences  might  in  time  cease 
to  operate  did  not  these  Rumans  look  across  the  moun- 
tains to  a  large  Ruman  State  into  which  they  would 
gladly  be  absorbed.  But  in  one  set  of  cases  no  fusion 
is  possible ;  and  this  set  of  cases  forms  the  despair  of  the 
statesman.  It  presents  a  problem  which  no  Constitu- 
tion has  solved.  It  is  the  juxtaposition  on  the  same  soil 
of  races  of  different  colour. 

This  is  a  recent  phenomenon  in  history.  In  the  an- 
cient world,  almost  all  the  barbarous  tribes  whom  Rome 
subdued  and  brought  into  her  Empire  were  sufficiently 
near  the  Italians  and  Hellenized  Asiatics  in  physical 
characteristics  for  intermarriage  to  go  on  freely.  The 
Carthaginians,  who  to  be  sure  were  not  numerous,  seem 
to  have  soon  lost  their  distinctive  nationality :  and  that 
the  Jews  remained  distinct  was  their  own  doing,  not  that 
of  the  conquerors1.  Even  as  towards  Egyptians  and 
Numidians,  who  were  certainly  dark,  one  hears  of  little 
repulsion.  Besides,  both  races  were  intelligent,  and  the 
former  in  their  way  highly  civilized.  With  the  African 
slave  trade  a  new  and  a  dolorous  chapter  in  history 
opens.  In  our  own  time  it  is  the  settlement  of  Euro- 
peans in  countries  where  the  native  holds  his  ground 
against  the  settler,  as  the  Kafir  does  in  South  Africa,  and 
the  aboriginal  Peruvians  and  Araucanians  do  in  Western 
South  .America,  or  it  is  the  influx  of  coloured  immi- 
grants, like  that  of  the  Chinese  in  Western  America  and 
the  Hawaiian  Isles,  that  raises,  or  threatens  to  raise  in 

1  In  two  respects  the  Jews  under  the  early  Kmpire  would  seem  to  have  been 
above  the  average  level  of  the  civilized  subjects  of  Rome.  There  was  apparently 
very  little  slavery  among  them  ;  and  there  must  have  been  an  exceptionally  lar^e 
proportion  of  persons  able  to  read. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         247 

the  future,  this  problem  in  an  acute  form.  A  community 
in  which  there  exist  two  or  more  race-elements  physi- 
cally contrasted  and  socially  unsusceptible  of  amalgama- 
tion cannot  grow  into  a  really  united  State.  If  the 
coloured  people  are  excluded  from  political  rights,  there 
is  created  a  source  of  weakness,  possibly  of  danger.  If 
they  are  admitted,  there  is  admitted  a  class  who  cannot 
fully  share  the  political  life  of  the  more  civilized  and 
probably  smaller  element,  who  will  not  be  consoled  by 
political  equality  for  social  disparagement,  and  who  may 
lower  the  standard  of  politics  by  their  incompetence  or 
by  their  liability  to  corruption.  If  the  people  of  colour 
are  dispersed  over  the  country  among  the  Europeans, 
instead  of  dwelling  in  masses  by  themselves,  they  may 
not  act  as  a  centrifugal  force,  threatening  secession,  but 
they  are  a  serious  hindrance  to  the  working  of  any  form 
of  popular  government  that  has  been  hitherto  devised, 
for  they  divide  the  population,  they  complicate  political 
issues,  they  prevent  the  growth  of  a  genuinely  national 
opinion. 

The  most  noteworthy  attempts  that  Constitutions 
have  made  to  deal  with  these  cases  have  been  made  in 
the  United  States,  where  the  latest  amendments  to  the 
Federal  Constitution  provide  protection  for  the  negroes 
and  forbid  the  States  to  exclude  any  person  from  the 
electoral  suffrage  in  respect  of  race  or  colour,  and  where 
several  recent  State  Constitutions  have  devised  inge- 
nious schemes  for  disfranchising  the  vast  mass  of  those 
whom  these  very  amendments  have  sought  to  protect. 
So  far  as  political  rights  are  concerned,  the  problem  is 
very  far  from  having  been  solved  in  the  United  States. 
But  as  regards  private  civil  rights,  it  has  certainly  been 
an  advantage  to  the  negroes  that  the  Federal  Constitu- 
tion guarantees  such  rights  to  all  citizens :  and  probably 
in  any  country  where  marked  differences,  with  possible 
antagonisms,  of  race  exist,  it  will  be  prudent  to  place  the 
private  civil  rights  of  every  class  of  persons  under  the 
equal  protection  of  the  laws,  and  to  make  the  rights 


848        CENTRIPETAL  AND   CENTRIFUGAL   FORCES 

thcmsclvo  practically  identical.  It  would  lead  me  too 
far  from  the  main  subject  to  describe  the  ways  in  which 
similar  problems  have  been  dealt  with  in  Algeria,  in 
South  Africa,  and  in  some  of  the  other  colonies  of  Euro- 
pean nations.  Nowhere  has  any  quite  satisfactory  solu- 
tion been  found  *.  But  the  case  of  New  Zealand  deserves 
to  be  mentioned  as  one  in  which  the  experiment  has 
been  tried  of  giving  parliamentary  representation  to  the 
natives,  who  mostly  live  apart  on  their  own  reserved 
lands.  So  far,  the  results  have  been  good.  The  condi- 
tions are  favourable,  for  the  Maoris  are  a  brave  and  in- 
telligent race,  and  they  are  now  too  few  in  number  to 
excite  disquiet. 

It  was  the  good  fortune  of  the  Roman  Empire  that 
the  vast  majority  of  the  races  whom  it  conquered  and 
absorbed  had  no  conspicuous  physical  differences  from 
the  Italians  which  prevented  intermarriage  and  fusion. 
Race  and  birthplace  were  no  great  obstacle  to  a  man 
of  force.  Two  or  three  of  the  Emperors  were  of  African 
or  Arab  extraction.  Moreover,  the  peoples  of  Southern 
Europe  seem  to  have  less  repulsion  of  sentiment  towards 
the  dark-skinned  races  than  the  Teutons  have.  The 
Spanish  and  Portuguese  intermarry  not  only  with  the 
native  Indians  of  Central  and  Southern  America,  but 
also  with  the  negroes.  The  French  of  Canada  inter- 
married more  freely  with  the  Indians  of  North  America 
than  the  English  have  done. 

Summing  up,  we  may  say  that  the  aim  of  a  well- 
framed  Constitution  will  presumably  be  to  give  the 
maximum  of  scope  to  the  centripetal  and  the  minimum 
to  the  centrifugal  forces.  But  this  presumption  is  sub- 
ject to  two  countervailing  considerations.  One  is  that 
the  energy  of  civic  life  may  be  better  secured  by  giving 
ample  range  and  sphere  of  play  to  local  self-govern- 
ment, which  will  stimulate  and  train  the  political  interest 
of  the  members  of  the  Stair,  and  relieve  the  central  au- 

1  In  Algeria  the  electoral  suffrage  is  limited  •  hut  in  some  of  the  French  tropical 
colonies  it  seems  to  have  been  granted  Irrespective  of  colour. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         249 

thority  of  some  onerous  duties.  The  other  is  that  the 
centrifugal  forces  may,  if  too  closely  pent  up,  like  heated 
water  in  the  heart  of  the  earth,  produce  at  untoward  mo- 
ments explosions  like  those  of  a  volcano.  Hence  it  is 
well  to  provide,  in  the  Constitution,  such  means  of  escape 
for  the  steam  as  can  be  made  compatible  with  the  general 
safety  of  the  State.  Where  a  Constitution,  and  espe- 
cially a  Rigid  Constitution,  has  been  framed  with  due 
regard  to  these  considerations,  and  turns  to  account  the 
methods  already  discussed,  it  may  itself  become  a  new 
centripetal  force,  a  factor  making  for  the  unity  and  co- 
herence of  the  community  which  lives  under  it.  The 
Rigid  Constitution  has  in  this  respect  one  advantage 
over  the  Flexible  one,  that  it  is  more  easily  understood 
by  the  mass  of  the  people,  and  more  capable  of  coming 
to  form  a  part  of  their  political  consciousness.  When 
such  a  Constitution  is  so  contrived  and  worked  as  to 
satisfy  the  bulk  of  the  nation — and  it  will  do  so  all  the 
more  if  no  single  section  dislikes  it — it  attracts  the  affec- 
tion and  pride  of  the  people,  their  pride  because  it  is 
their  work,  their  affection  because  they  enjoy  good  gov- 
ernment under  it.  Time,  if  it  does  not  weaken  these 
feelings,  strengthens  them,  because  reverence  comes 
with  age.  By  providing  a  convenient  channel  or  medium 
through  or  in  which  the  centripetal  forces  may  act,  the 
Constitution  increases  the  effective  strength  of  those 
forces.  It  is  a  reservoir  of  energy,  an  accumulator,  if 
the  comparison  be  permissible,  which  has  been  charged 
by  a  dynamo,  and  will  go  on  for  some  time  discharging 
the  energy  stored  up  in  it.  But,  like  an  accumulator,  its 
energy  becomes  exhausted  if  there  is  not  behind  it  an 
engine  generating  fresh  power,  that  is  to  say,  if  the  real 
social  and  political  forces  which  called  it  into  being  have 
become  feebler,  and  those  which  oppose  it  have  become 
stronger. 


250        CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

V.     Illustrations  from  Modern  History  of  the 
Action  of  Constitutions. 

The  best  instance  of  the  capacity  of  a  Constitution  to 
reinforce  and  confirm  existing  centripetal  tendencies  is 
supplied  by  the  history  of  the  Rigid  Constitution  of  the 
United  States.  That  instrument  was  at  first  received 
with  so  little  favour  by  the  people  that  its  ratification 
was,  in  many  States,  obtained  with  the  greatest  possible 
difficulty,  and  the  original  document  secured  acceptance 
only  on  the  understanding,  which  was  loyally  carried  out, 
that  it  should  forthwith  receive  a  number  of  amend- 
ments. Within  fifteen  years  the  party  which  had  advo- 
cated it  was  overthrown  in  the  country,  and  ultimately 
broke  up  and  vanished.  A  generation  passed  away  be- 
fore it  began  to  be  generally  popular.  But  after  a  time 
it  secured  so  widespread  a  respect  that  even  during  the 
fierce  and  protracted  struggle  which  ushered  in  the  Civil 
War  few  attacked  the  Constitution  itself,  nearly  all  the 
combatants  on  one  side  or  the  other  claiming  that  its 
provisions  were  really  in  their  favour.  It  was  not  round 
the  merits,  but  round  the  true  construction,  of  the  instru- 
ment that  controversy  raged.  Since  the  Civil  War,  and 
the  amendments  which  embodied  the  results  of  the  Civil 
War,  it  has  been  glorified  and  extolled  in  all  quarters1, 
and  has  unquestionably  been  a  most  potent  influence  in 
consolidating  the  nation,  as  well  as  in  extending  the 
range  and  the  activity  of  the  central  government. 

To  what  is  this  success  due?  Regarded  as  a  Frame 
of  Government,  i.e.  as  a  piece  of  mechanism  for  dis- 
tributing powers  between  the  Executive,  the  Legislature 
and  the  Judiciary,  the  American  system  has  probably 
been  praised  beyond  its  deserts.  Both  the  mode  of  elect- 
ing the  President  and  the  working  of  Congress  leave 
much  to  be  desired.  But  the.  Constitution  has  had  two 
conspicuous    merits.     It    so   judiciously    estimated    the 

1  Only  since  1890  have  complaints  begun  to  be  made:  sec  Essay  III,  p.  202, 
ante. 


CENTRIPETAL  AND   CENTRIFUGAL   FORCES         251 

centripetal  and  centrifugal  forces  as  they  actually  stood 
at  the  time  when  it  was  framed,  frankly  recognizing  the 
latter  and  leaving  free  play  for  them,  and  while  throwing 
its  own  weight  into  the  scale  of  the  centripetal,  doing 
this  only  so  far  as  not  to  provoke  a  disjunctive  reaction, 
that  it  succeeded  in  winning  respect  from  the  advocates 
both  of  States'  Rights  and  of  National  Unity  l.  Thus  it 
was  able  to  add  more  strength  to  the  centripetal  ten- 
dency than  it  could  have  done  had  it  been  originally 
drawn  on  more  distinctly  centripetal  lines.  For — and 
here  comes  in  the  second  merit — its  provisions  defining 
the  functions  of  the  central  Government  were  expressed 
in  such  wide  and  elastic  terms  as  to  be  susceptible  of 
interpretation  either  in  a  more  restricted  or  in  a  more 
liberal  way,  i.e.  so  as  to  allow  either  a  less  wide  or  a 
more  wide  scope  of  action  for  the  Central  Government. 
During  the  earlier  years,  when  State  sentiment  was  still 
stronger  than  National  sentiment,  the  scope  remained 
limited,  because  both  the  executive  and  the  legislature 
wished  to  keep  it  so,  and  such  extensions  as  there  were 
came  from  judicial  construction.  But  latterly,  and  espe- 
cially since  the  prodigious  development  of  internal  com- 
munications has  stimulated  commerce,  and  since  the 
death  blow  given  to  States'  Rights  doctrines  by  the  Civil 
War,  the  scope  has  been  widened,  and  has  widened  quite 
naturally  and  gradually,  with  no  violence  to  the  words  of 
the  Constitution,  but  according  to  that  expansive  inter- 
pretation of  them  which  changing  conditions  and  a  cor- 
responding change  in  national  sentiment  prescribed  2. 

Nowadays  one  hears  in  the  United  States  less  about 
the  Constitution  than  about  the  Flag3.     But  that  is 

1  It  has  been  accused  of  having  caused  a  civil  war  by  omitting-  to  deal  with 
the  questions  out  of  which  the  Civil  War  arose,  and  by  failing  to  negative  the 
right  of  secession.  But  to  this  it  may  be  answered  that  an  attempt  to  deal  with 
those  questions  or  to  negative  that  right  might  possibly  have  prevented  it  from 
having  ever  been  accepted. 

a  This  interpretation  has  sometimes  been  at  variance  with  the  views  of  the 
older  interpreters,  but  no  instance  occurs  to  me  in  which  an  impartial  jurist  could 
have  pronounced  it  inadmissable. 

3  This  is  still  more  so  to-day  (1900)  than  it  was  when  this  Essay  was  first  com- 
posed. 


CENTRIPETAL   AND   CENTRIFUGAL   FORCES 

partly  because  the  Constitution  has  done  its  work,  and 
made  the  Flag  the  popular  badge  of  an  Unity  which  it 
took  nearly  a  century  to  endear  to  the  nation. 

One  might  go  on  to  illustrate  the  efficiency  of  a  Con- 
stitution in  consolidating  a  people  composed  of  dispa- 
rate elements  from  the  parallel  case  of  Switzerland, 
where  communities  speaking  three  (it  might  almost  be 
said  four)  different  languages  have  been  brought  much 
closer  together  by  the  Constitutions  of  1848  and  1874 
than  they  were  before,  or  could  have  been  without  some 
such  arrangement.  Switzerland,  however,  is  a  more 
complicated  case,  because  much  has  turned  on  the  ex- 
ternal pressure  towards  unity  exerted  by  the  fear  felt  for 
several  great  bordering  Powers.  The  formidable  neigh- 
bours of  the  Confederation  have,  so  to  speak,  squeezed 
together  into  a  Swiss  people  the  originally  dissimilar 
Alemannic,  Celto-Burgundian,  Italian,  and  Romansch 
communities. 

The  two  instances  of  the  United  States  and  Switzer- 
land1, compared  with  those  of  unitary  countries  living 
under  Rigid  Constitutions,  such  as  France,  Belgium, 
Holland  and  Denmark,  suggest  the  observation  that 
the  service  which  Rigid  Constitutions  may  render  in 
strengthening  the  centripetal  tendency  can  best  be  ren- 
dered where  a  Federation  is  to  be  constructed.  For  in 
these  cases  what  is  needed  is  an  arrangement  by  which 
the  several  rights  of  the  component  communities  which 
are  to  form  the  State  may  be  so  protected  that  they 
need  not  fear  to  give  their  allegiance  to  the  State  and 
cordially  support  its  Central  Government.     The  exist- 

1  One  would  like  to  refer  to  the  cases  of  tlic  numerous  so-called  republics,  most 
of  them  federal,  of  Spanish  America.  Hut  apart  from  the  difficulty  of  ascertain- 
ing their  constitutional  history,  little  of  which  has  been  written,  some  of  these  re- 
publics seem  to  pay  so  little  regard  to  their  constitutions,  living  generally  in  a 
state  of  revolution,  whether  subsiding,  or  actually  raging,  or  apprehended,  like 
the  Atlantic  during  a  scries  of  cyclones  following  one  another  along  the  same 
track  from  the  Bermudas  to  the  Fastnet,  that  it  is  bard  to  draw  any  conclusions 
of  value  from  them.  They  are  in  fact  republics  only  in  name:  and  it  is  surprising 
that  Sir  H.  Maine  in  bis  Popular  Govemmtnt  condescended  to  go  to  them  for 
arguments  to  discredit  democracy.  They  are  military  tyrannies,  the  product  of 
peculiar  historical,  territorial  and  racial  conditions. 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES        253 

ence  of  such  communities  is  an  expression  of  forces 
actually  operative  which  are  centrifugal  as  towards  the 
State  as  a  whole,  and  therefore  need  to  be  studied.  By- 
giving  a  carefully  limited  scope  to  these  forces,  and 
thereby  diminishing  their  possibilities  of  danger,  the 
Constitution  subserves  the  cohesion  of  the  States.  In  a 
truly  unitary  country  this  service  is  not  needed.  But 
there  are  cases  in  which  States  endeavouring  to  become 
unitary  would  have  done  better  had  they  sought  to  apply 
the  federal  principle,  placing  it  under  the  protection  of 
a  Rigid  Constitution.  I  have  already  referred  to  Den- 
mark. Holland  might  probably  have  saved  Belgium 
by  a  concession  of  some  such  kind.  Whether  a  similar 
contrivance  might  not  have  been  profitably  employed 
within  the  British  Isles  in  a.d.  1782,  or  in  a.  d.  1800,  or 
again  later,  is  a  question  which  will  already  have  pre- 
sented itself  to  one  who  has  followed  the  argument  thus 
far. 

In  dwelling  upon  the  services  which  Constitutions 
may  render,  by  fostering  the  centripetal  forces,  or  by 
restraining  the  violence  and  softening  the  action  of  the 
centrifugal  forces,  we  must  not  forget  that  no  scheme  of 
government  can  hope  permanently  to  resist  the  action 
of  either  tendency  if  either  develops  much  greater 
strength  than  it  possessed  when  the  Constitution  was 
framed.  If  the  centripetal  forces  grow,  the  Constitution 
whose  provisions  have  recognized  and  given  scope  to 
the  centrifugal  will  be  practically,  in  some  of  those  pro- 
visions, superseded.  If  the  centrifugal  grow,  it  may  be 
overthrown.  It  is  where  the  forces  are  nearly  balanced, 
that  the  weight  of  the  Constitution  may  turn  the  scale, 
and  avert  conflicts  which  would  have  rent  the  commu- 
nity, or  caused  a  violent  subjection  of  one  part  of  it  to 
the  other.  And  in  any  case  the  Constitution  ought, 
where  dissimilative  and  disruptive  forces  are  feared,  to 
be  so  drawn  as  to  enlist  all  available  motives  of  interest, 
to  shelter  the  law  behind  popular  sentiment  where  pos- 
sible, to  oppose  it  to  sentiment  as  little  as  possible,  and 


254  CENTRIPETAL   AND   CENTRIFUGAL  FORCES 

to  avoid  challenging  at  the  same  time  the  hostility  of 
several  kinds  of  sentiment. 


VI.    The  Probable  Action   of  the  Aggregative  and 
the  Disjunctive  Tendencies  in  the  Future. 

Whether  in  the  long  run  it  is  the  centripetal  or  the 
centrifugal  force  that  will  prevail  in  politics,  or,  in  other 
words,  whether  large  States  or  small  States  are  more 
likely  to  commend  themselves  to  mankind,  is  a  question 
which  belongs  rather  to  history  than  to  the  doctrines  of 
constitutions,  and  which  could  be  adequately  discussed 
only  after  a  long  investigation.  History  shows  us  first 
one  force  dominant,  then  the  other,  though  no  doubt 
the  centrifugal  is  usually  more  powerful  in  rude  times 
and  in  hilly  or  mountainous  countries,  the  centripetal 
in  countries  comparatively  advanced  in  civilization,  and 
in  level  and  fertile  regions  where  wealth  is  more  easily 
acquired  and  stored,  and  where  military  operations  are 
easier.  When  the  mists  of  antiquity  begin  to  rise  suffi- 
ciently to  show  us  the  Mediterranean  and  south-west 
Asiatic  world,  we  discover  both  a  few  great  States  and  a 
multitude  of  small  ones.  The  former  have  a  low,  the 
latter  a  high  and  intense  political  vitality.  From  the 
time  of  Menes  down  to  that  of  Attila  the  tendency  is 
generally  towards  aggregation :  and  the  history  of  the 
ancient  nations  shows  us,  not  only  an  enormous  number 
of  petty  monarchies  and  republics  swallowed  up  in  the 
Empire  of  Rome,  but  that  empire  itself  far  more  highly 
centralized  than  any  preceding  one  had  been.  When  the 
Roman  dominion  began  to  break  up  the  process  was 
reversed,  and  for  seven  hundred  years  or  more  the  cen- 
trifugal forces  had  it  their  own  way.  Europe  and  West- 
ern Asia  were  divided  up  among  innumerable  petty  po- 
tentates, and  even  the  large  monarchies,  such  as  the  two 
Khalifates,  the  Romano-Germanic  Empire,  the  king- 
doms of  France  and  Hungary,  possessed  so  feeble  a 
royal  authority  that  the  real  organs  of  government  and 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         255 

centres  of  attraction  were  to  be  sought  rather  in  the 
vassals  than  in  the  nominal  sovereign.  From  the  thir- 
teenth century  onwards  the  tide  begins  to  set  the  other 
way.  One  great  State  indeed — the  Empire — first  decays 
and  then  disappears  under  the  action  of  centrifugal 
forces,  but  all  the  other  chief  States  expand,  absorbing 
their  smaller  neighbours,  and  giving  themselves  a  com- 
pact and  well-knit  organization  which  makes  the  central 
power  effective  through  the  whole  sphere  of  its  action. 
This  process  culminates  in  the  despotic  monarchies  of 
the  eighteenth  century,  when  the  strength  of  feudal  lo- 
calism has  been  completely  broken,  though  the  pic- 
turesque relics  of  it  still  cumber  the  ground,  and  when 
at  the  same  time  the  foundations  are  laid  in  the  West  of 
a  gigantic  State  which  proceeds  to  cover  the  temperate 
area  of  North  America  between  the  two  oceans,  and,  in 
the  East,  of  the  dominion  of  a  European  nation  which 
has  absorbed  the  numerous  and  populous  principalities 
of  India.  Immediately  afterwards  the  doctrine  of  popu- 
lar self-government  and  the  doctrine  of  nationalities 
come  upon  the  scene,  threatening  a  disruption  of  some 
existing  political  aggregates.  In  point  of  fact,  how- 
ever, these  new  principles  have  done  as  much  to  unite 
as  to  sever,  for  though  five  States— Greece,  Rumania, 
Servia,  Montenegro  and  Bulgaria — have  been  cut  off 
from  an  effete  monarchy,  and  sixteen  republics  have 
been  carved  out  of  the  American  dominions  of  Spain 
and  Portugal,  the  doctrine  of  nationality  has  substi- 
tuted two  new  great  States,  more  important  than  all 
the  last-mentioned  twenty-one  put  together,  for  the 
multitude  of  kingdoms  and  principalities  which  so  late 
as  1859  filled  Italy  and  Germany. 

Thus  neither  Democracy  nor  the  principle  of  Nation- 
alities has,  on  the  balance  of  cases,  operated  to  check 
the  general  movement  towards  aggregation  which 
marks  the  last  six  centuries. 

It  may,  however,  be  said — and  this  question  should 
be  faced  before  we  proceed  to  inquire  whether  the  aggre- 


256         CENTRIPETAL  AND   CENTRIFUGAL  FORCES 

gativc  movement  is  likely  to  continue — that  in  all  this 
inquiry  we  have  been  ignoring  two  potent  factors.  One 
is  Conquest — that  is  to  say,  military  power.  We  have 
been  examining  the  forces  of  Interest  and  Sympathy, 
which  cover  a  number  of  influences  social  or  economic, 
racial  or  sentimental.  But  after  all  it  is  Conquest,  i.e. 
the  might  of  the  strongest,  which  has  created  most 
States  as  we  find  them.  Is  Conquest  one  of  the  centripe- 
tal forces?  and  if  so,  is  it  not  the  greatest  of  them  ? 

The  other  factor  is  Family  Succession,  which  both 
during  the  Middle  Ages  and  since  has  done  a  great  deal 
to  consolidate  principalities  and  kingdoms.  The  United 
Kingdom  owes  much  to  this  agency,  Austria  and  France 
even  more. 

Conquest  and  Dynastic  Succession  are  hardly  fit  to 
be  classed  among  the  centripetal  forces,  because  they  are 
not  susceptible  of  scientific  treatment  like  the  other  in- 
fluences. The  disposition  of  the  stronger  to  subdue  and 
annex  the  weaker  neighbour  is  of  course  a  permanent 
fact  in  human  nature,  and  therefore  in  history.  But  in 
each  particular  instance  the  success  of  one  or  other  com- 
batant depends  on  what  may  be  called  historical  acci- 
dents— on  the  numbers  or  the  discipline  of  troops,  on  the 
possession  of  a  commander  of  military  genius,  on  alli- 
ances with  other  states, on  the  internal  dissensions  of  one 
state  as  compared  with  the  unity  of  another.  Physical 
force  belongs  to  a  different  sphere  from  that  in  which  po- 
litical constitutions  work.  Constitutions  may  result  from 
a  conquest  or  may  be  maintained  for  a  time  by  arms  ;  but 
if  they  are  obliged  to  rely  on  and  have  constant  recourse 
to  physical  force  in  order  to  prevent  their  overthrow, 
they  are,  considered  as  Constitutions,  failures;  because 
the  very  nature  and  object  of  a  constitutional  Frame  of 
Government  is  so  to  express  and  so  to  adjust  to  existing 
conditions  tin-  wishes  and  aims  of  the  citizens  as  to  make 
the  majority,  and  if  possible  the  vast  majority,  of  the 
people  desire  to  support  it.  According  to  the  proverb, 
you  can  do  anything  with  bayonets  except  sit  down  on 


CENTRIPETAL  AXD   CENTRIFUGAL  FORCES         257 

them.  Physical  force  is  of  course  needed  to  punish  oc- 
casional infractions  of  the  Constitution  or  to  quell  re- 
volts against  it.  But  the  system  of  government  which 
ex  hypothcsi  corresponds  to  the  permanently  strongest 
among  the  moral  forces,  else  it  has  no  right  to  prevail  in 
a  free  country,  ought  not  to  be  surrounded  by  cannon. 

Similarly,  the  devolution  of  princedoms  or  kingdoms 
by  marriage  and  inheritance,  much  as  it  has  done  to 
bring  States  originally  independent  under  one  govern- 
ment, lies  outside  political  science  in  the  proper  sense 
of  the  term.  Like  conquest,  it  brings  about  a  new  state 
of  things  by  an  event  with  which  the  ordinary  political 
and  constitutional  phenomena  of  national  life  have 
nothing  to  do,  coming  into  these  phenomena  as  an  in- 
commensurable and  (so- to  speak)  irrational  factor1. 

So  soon  as  either  conquest  or  a  union  due  to  here- 
ditary succession  has  taken  place,  the  normal  centri- 
petal and  centrifugal  tendencies  resume  their  action. 
Where  the  territory  of  one  people  has  been  forcibly 
acquired  by  another,  as  Lombardy  was  acquired  by 
Austria  in  1815,  or  has  been  occupied  in  virtue  of  a  title 
based  on  succession,  as  Portugal  was  claimed  by  Spain 
in  1580,  such  centripetal  forces  as  may  exist  have  the  ad- 
vantage of  physical  force  behind  them.  But  this  advan- 
tage may  be  unavailing  against  the  stronger  forces 
which  sentiment  sends  forth  to  dissever  the  connexion. 
Austria  lost  Lombardy  after  forty-four  years ;  Spain  lost 
Portugal  after  sixty.  In  both  cases  there  was  fighting, 
but  it  was  not  so  much  the  balance  of  military  strength 
as  the  settled  hostility  of  the  subjected  people  which  in 
both  caused  the  severance.  So  the  acquisition  by  the 
English  kings  of  Aquitaine  and  the  subsequent  conquest 

1  The  fact  that  the  custom  of  a  country  permits  or  forbids  succession  through 
females  makes  a  great  difference  in  the  importance  of  succession.  The  union  of 
Castile  with  Aragon,  like  the  union  of  England  with  Scotland,  would  not  have  oc- 
curred under  a  different  rule  of  succession.  So  it  may  make  a  difference  whether 
the  throne  of  the  larger  country  passes  to  the  dynasty  of  the  smaller,  or  vice  versa. 
Had  a  king  of  England  inherited  the  throne  of  Scotland,  Scotland  might  have 
been  more  hostile  to  England.  Had  a  king  of  Portugal  inherited  the  throne  of 
Spain,  the  two  countries  might  have  remained  united. 

17 


2-")S    CENTRIPETAL   AND    CENTRIFUGAL  FORCES 

of  large  part  of  France,  the  conquest  by  the  Turks  of 
Transylvania,  the  union  of  Holstein  with  Denmark,  the 
union  of  Belgium  with  Holland,  the  union  of  Alsace  with 
France,  all  effected  without  regard  to  the  will  of  the 
people,  were  all  in  time  brought  to  an  end.  The  last- 
mentioned  case  is  a  peculiar  one.  It  was  not  because 
the  Alsatians  wished  to  be  reunited  to  Germany,  but  be- 
cause the  Germans  wished  to  be  reunited  to  Alsace  that 
a  connexion  which  had  lasted  nearly  two  centuries  was 
dissolved  in  1871.  Military  motives,  decisive  as  regards 
the  annexed  part  of  Lorraine,  had  something  to  do  with 
the  taking  of  x\lsace  also ;  but  if  Alsace  had  not  been 
German  in  language  and  habits,  though  not  in  sentiment, 
the  popular  voice  of  Germany  would  not  have  insisted  on 
recovering  it  against  the  will  of  its  inhabitants. 

Speaking  broadly,  one  may  say  that  Conquest  and 
Inheritance  give  an  opportunity,  better  in  the  latter  than 
in  the  former  case,  for  centripetal  forces  to  work.  If 
the  peoples  on  which  they  operate  are  backward,  with 
no  pronounced  national  feeling,  that  chance  may  be  a 
good  one,  and  the  influences  of  free  commerce,  joint 
government  (especially  if  it  is  good  government),  to- 
gether with  the  kind  of  pride  which  common  service  in 
war  often  produces,  may  operate  to  weld  two  peoples 
together  into  a  united  State.  Much  depends  on  lan- 
guage, much  on  geographical  position,  much  on  exter- 
nal pressure  from  powerful  neighbours.  But  if  one  of 
the  peoples  (or  both)  has  already  developed  a  strong 
sentiment  of  nationality,  the  prospect  of  fusion  is  but 
slender. 

The  Roman  Empire  is  the  capital  instance  of  a  vast 
dominion  established  by  conquest.  But  there  it  was  the 
weakness  of  the  centrifugal  forces  that  secured  the  co- 
hesion of  the  Empire.  The  conquered  countries  were 
either,  like  Gaul,  Spain  and  Britain,  occupied  by  tribes 
between  whom  there  existed  so  weak  a  bond  that  no 
general  national  feeling  or  combined  national  action  was 
possible,  or  had  been,  as  in  the  Eastern  Mediterranean 


CENTRIPETAL  AND  CENTRIFUGAL  FORCES         259 

World,  ruled  by  dynasties,  most  of  them  sprung  from 
military  adventurers  1,  so  that  the  sentiment  of  national 
life  had  not  centred  in  the  monarchy.  The  centrifugal 
forces  of  interest — the  desire  for  peace,  good  govern- 
ment, facilities  for  commerce,  and  so  forth — obtained 
free  play  under  the  imperial  administration,  and  to  these 
was  added  after  a  time  the  sense  of  pride  in  Roman  citi- 
zenship, and  in  the  greatness  of  a  State  which  included 
all  the  highest  civilization  of  the  world.  So  too  during 
the  Middle  Ages  not  a  few  conquests  ended  in  an  assimi- 
lation of  the  vanquished,  which  enlarged  without  weak- 
ening the  conquering  nation.  But  during  the  last  three 
centuries  the  experience  of  military  powers  has  been 
that  the  acquisition  of  masses  of  subjects  who,  being  al- 
ready civilized,  are  likely  to  resist  absorption  and  to  re- 
main disaffected,  is  a  doubtful  gain  and  may  become  a 
danger  to  the  conquering  State.  The  last  conspicuous 
instance  is  Poland,  partitioned  between  three  Powers, 
to  all  of  whom  her  provinces  have  brought  trouble. 
Conquests  continue  to  be  made,  but  they  are  now  mostly 
of  barbarous  or  semi-civilized  races,  so  inferior  to  the 
conquerors  in  force  and  in  national  spirit  that  the  centri- 
fugal forces  are,  or  at  least  seem  to  be,  practically 
negligible. 

Is  it  possible,  then,  to  arrive  at  any  conclusion  regard- 
ing the  respective  strength  which  these  two  sets  of 
forces  are  likely  to  display  in  the  coming  centuries  ? 
Will  the  tendency  to  aggregation  continue,  and  does  the 
future  belong  to  great  States  ?  Or  may  new  forces  ap- 
pear which  will  reverse  the  process,  as  it  was  reversed, 
though  through  causes  most  unlikely  to  reappear,  at  the 
fall  of  the  Roman  Empire  ? 

At  first  sight  the  probabilities  seem  to  point  to  fur- 
ther aggregation.    Although  none  of  the  five  great  na- 

1  There  were  of  course  also  a  certain  number  of  city  republics,  or  leagues  of  re- 
publics, but  these  were  too  small  to  have  developed  national  feeling  in  the  modern 
sense ;  and  the  Roman  system  left  most  of  them  a  certain  measure  of  self-govern- 
ment which  modified  their  regret  for  an  independence  the  delight  in  which  had 
been  (in  many  cases)  reduced  by  domestic  disorders. 


260        CENTRIPETAL  ASD  CENTRIFUGAL  FORCES 

tional  States — Russia,  Germany,  France,  Italy,  Britain 
— is  in  the  least  likely  to  be  absorbed  by  any  of  the 
others,  there  is  reason  to  think  that  within  the  next  cen- 
tury some  of  the  smaller  states  will  have  disappeared 
from  the  map  of  Europe.  In  one  or  two  other  parts  of 
the  world — as  for  instance  in  South  and  in  Central  Amer- 
ica— the  process  by  which  the  great  States  are  expand- 
ing is  not  yet  complete.  The  influences  of  swifter  and 
cheaper  communications  by  land  and  sea,  of  increasing 
commerce,  and  of  the  closer  intercourse  which  com- 
merce brings,  of  the  power  exerted  by  the  printing  press 
in  extinguishing  the  languages  which  prevail  over  a 
small  area  and  diffusing  those  spoken  by  vast  masses  of 
men — all  these  things  make  for  unity  within  each  of  the 
great  States  and  add  to  the  attractive  power  which  the 
greater  have  for  the  smaller.  These  influences,  more- 
over, all  promise  to  be  permanent. 

Against  them  we  must  set  the  fact  that  Conquest,  so 
far  as  civilized  peoples  are  concerned,  seems  likely  to 
play  a  smaller  role  in  the  future  than  in  the  past,  because 
it  begins  to  be  perceived  how  tenacious  is  the  sentiment 
of  nationality  in  a  vanquished  people,  and  how  much  the 
maintenance  of  that  sentiment  may  endanger  the  victor 
State.  As  was  observed  in  an  earlier  page,  the  progress 
of  a  community  in  civilization  often  tends  to  intensify 
both  its  capacity  for  political  discontent  and  its  peculiar 
national  sentiment,  thus  counterworking  the  influences 
of  trade  and  wealth.  A  people,  or  a  nationality  included 
in  a  large  State,  while  feeling  the  centripetal  forces  of 
material  interest,  may  nevertheless  feci  the  repellent 
instinct  of  an  unquenched  attachment  to  its  national  tra- 
ditions and  cling  to  the  hope  of  reviving  its  old  national 
life. 

The  problem  is,  however,  a  far  more  complex  one  than 
any  comparison  of  the  influences  of  material  interest  on 
the  one  side  and  national  sentiment  on  the  other  would 
suggest.  Many  phenomena  may  be  imagined  which 
V/ould  affect  it  as  the  world  moves  on.    One  is  a  change 


CENTRIPETAL  AND   CENTRIFUGAL  FORCES         261 

in  the  conditions  under  which  war  is  waged.  Another 
is  a  removal  of  some  of  the  causes  which  induce  war,  or 
a  means,  better  than  now  exists,  of  averting  its  out- 
break. Another  is  the  growth  of  what  is  called  Collec- 
tivism and  a  disposition  to  apply  its  principles  in  small 
rather  than  in  large  areas,  seeing  that  there  are  obvi- 
ously some  things  which  can  be  better  managed  in  the 
former.  We  are  far  from  having  exhausted  the  possi- 
bilities of  the  influence  of  scientific  discovery  upon  eco- 
nomic life,  and  through  it  upon  social  and  political  life. 
Both  the  relations  of  Nations  and  States  to  one  another 
and  the  relations  of  the  groups  or  communities  within 
each  State  to  each  other  may  be  affected  in  ways  as  yet 
scarcely  dreamt  of.  Neither  can  we  foresee  the  modes 
in  which  the  scientific  way  of  looking  at  all  questions 
may  come  ultimately  to  tinge  and  modify  men's  habits  of 
thought  even  in  social  and  political  matters.  No  institu- 
tion was  at  one  time  more  generally  prevalent  over  the 
world,  or  seemed  more  deeply  rooted,  than  Slavery ;  and 
slavery,  which  has  now  vanished  from  civilized  com- 
munities, will  soon  have  vanished  from  all  countries. 
There  is  indeed  hardly  any  institution  for  which  perma- 
nance  can  be  predicted  except — and  some  will  not  admit 
even  this  exception — the  Family. 

Imagine  a  world  in  which  all  the  hitherto  unappropri- 
ated territories  had  been  allotted  to  one  or  other  of  the 
few  strongest  States.  Imagine  tariffs  abolished  and  the 
principle  of  equality  of  trade-facilities  among  States  es- 
tablished. Imagine  a  system  of  international  arbitra- 
tion created  under  which  the  risks  of  war  were  so  greatly 
reduced  that  the  prospects  of  war  did  not  occupy  men's 
minds  and  give  a  military  and  aggressive  tinge  to  their 
patriotism.  The  present  relations  of  centripetal  and 
centrifugal  forces  would  under  such  conditions  be 
greatly  altered,  as  respects  both  the  wide  theatre  of  the 
world  and  the  internal  conditions  of  each  particular 
State. 

Imagine  also  a  great  advance  in  the  desire  to  use  gov- 


262       CENTRIPETAL  AND  CENTRIFUGAL  FORCES 

ernmental  agencies  for  the  benefit  of  the  citizens,  and  a 
general  conviction  that  such  agencies  could  best  be  used 
by  comparatively  small  communities  rather  than  by  the 
State  as  a  whole.  A  new  centrifugal  force,  centrifugal 
at  least  in  respect  of  each  State,  would  thereby  have  been 
called  into  action.  No  one  will  venture  to  foretell  any  of 
these  things.  But  none  of  them  is  impossible ;  and  it  is 
plain  that  they  might  produce  a  set  of  conditions,  and  a 
play  of  forces,  unlike  the  present,  and  unlike  any  period 
in  the  past.  We  must  not  therefore  assume  that  the 
large  States  and  the  present  structure  and  organization 
of  States  will  be  permanent. 

Of  the  more  remote  future,  History  can  venture  to  say 
little  more  than  this — that  it  will  never  bring  back  the 
past.  She  recognizes  that,  as  Heraclitus  says,  one  can- 
not step  twice  into  the  same  river.  Even  when  she  is 
able  to  declare  that  certain  forces  will  assuredly  be  pre- 
sent, she  cannot  forecast  their  relative  strength  at  any 
given  moment,  nor  say  what  hitherto  unobserved  forces 
they  may  not,  in  their  action  upon  one  another,  call  into 
activity.  All  she  can  do  for  the  lawyer,  the  statesman 
and  the  legislator,  when  they  have  to  study  and  use  the 
forces  operative  in  their  own  time,  is  to  indicate  to  them 
the  nature  and  the  character,  the  significant  elements  of 
strength  and  weakness,  that  belong  to  each  and  every 
force  that  has  been  heretofore  conspicuous,  so  as  to 
direct  and  guide  them  in  observing  and  reflecting  on  the 
present.  This  is  much  less  than  has  sometimes  been 
claimed  for  history.  Nevertheless  it  is  a  real  service, 
for  nothing  is  more  difficult  than  to  observe  exactly,  and 
the  ripest  fruit  of  historical  study  is  that  detachment  of 
mind,  created  by  the  habit  of  scientific  thinking,  which 
prevents  observation  from  being  coloured  by  prejudice 
or  passion. 


V 
PRIMITIVE    ICELAND 

Iceland  is  known  to  most  men  as  a  land  of  volcanoes, 
geysers  and  glaciers.  But  it  ought  to  be  no  less  inter- 
esting to  the  student  of  history  as  the  birthplace  of  a 
brilliant  literature  in  poetry  and  prose,  and  as  the  home 
of  a  people  who  have  maintained  for  many  centuries  a 
high  level  of  intellectual  cultivation.  It  is  an  almost 
unique  instance  of  a  community  whose  culture  and  crea- 
tive power  flourished  independently  of  any  favouring 
material  conditions,  and  indeed  under  conditions  in  the 
highest  degree  unfavourable.  Nor  ought  it  to  be  less 
interesting  to  the  student  of  politics  and  laws  as  having 
produced  a  Constitution  unlike  any  other  whereof  re- 
cords remain,  and  a  body  of  law  so  elaborate  and  com- 
plex that  it  is  hard  to  believe  that  it  existed  among  men 
whose  chief  occupation  was  to  kill  one  another. 

With  the  exception  of  Madeira  and  the  Azores,  Ice- 
land is  the  only  part  of  what  we  call  the  Old  World  * 
which  was  never  occupied  by  a  prehistoric  race,  and  in 
which,  therefore,  the  racial  origin  of  the  population  is 
historically  known  to  us. 

None  of  those  rude  tribes  who  dwell  scattered  over 
the  north  of  Asia,  Europe  and  America — Lapps,  Samoy- 
edes  or  Esquimaux — ever  set  foot  in  it.  Adamnan, 
Abbot  of  Iona  from  a.  d.  679  to  704,  reports  in  his  famous 

1  Though  geographically  Iceland  belongs  rather  to  North  America  than  to 
Europe,  geologically  its  affinities  arc  with  the  Cape  Verde  Islands,  the  Canaries, 
Madeira,  and  possibly  the  Azores  to  the  South,  with  Jan  Mayen  to  the  North,  as 
it  seems  to  owe  its  origin  to  a  line  of  volcanic  action  stretching  from  the  Cape 
Verde  Islands  to  far  beyond  the  Arctic  Circle. 


264  PBIMITH  i:   ICELAND 

Life  of  St.  Columba1,  a  prophecy  of  the  saint  regarding 
a  holy  man  named  Kormak,  who,  in  Columba's  days 
(a.d.  521-597),  made  three  long  voyages  from  Ireland  in 
search  of  the  '  Desert  in  the  Ocean  '  (eremum  in  Oceano), 
a  term  so  happily  descriptive  of  Iceland  that  one  is 
tempted  to  believe  it  to  be  the  region  referred  to.  A 
little  later  the  Venerable  Bede  (a.d.  672,-73$)  speaks  of 
contemporaries  of  his  own  who,  coming  from  the  isle  of 
Thule,  declared  that  in  it  the  sun  could  be  seen  at  mid- 
night for  a  few  days  2.  Still  later  the  Irish  monk  Dicuil 
(writing  about  a.d.  825)  tells  8  of  an  isle  lying  far  to  the 
North-West  where  monks  known  to  him  had  spent  the 
summer  some  thirty  years  before.  And  our  earliest  Ice- 
landic authority,  the  famous  Landnamabok  (Book  of  the 
Land-takings),  mentions  that  when  the  first  Norwegian 
settlers  arrived  they  found  a  few  hermits  of  Irish  race  al- 
ready established  there,  who  soon  vanished  from  the 
presence  of  the  stronger  heathen,  leaving  behind  books, 
bells  and  staves  (probably  crozicrs).  The  Norse  settlers 
called  them  Papas  (i.e.  priests),  or  Westmen,  a  term  used 
to  describe  the  Scots  of  Ireland.  No  doubt,  then,  the 
earliest  discoverers  of  the  isle  were  these  Celtic  hermits, 
who  had  crossed  the  wide  and  stormy  sea  in  their  light 
coracles  of  wood  and  leather,  consecrating  themselves 
to  prayer  and  fasting  in  this  inclement  wilderness.  But 
they  contributed  no  element  to  the  population  of  the 
island,  and  can  hardly  be  said  to  have  a  place  in  its 
history,  which  begins  with  the  great  Norwegian 
immigration. 

The  first  Teuton  to  reach  Iceland  was  a  Norse  Viking 
named  NadcloS,  who  was  driven  to  the  isle  by  a  storm  in 

1  Vita  S.  Columbae,  cap.  vi. 

8  Comment,  on  2  Kings  xx.  9.  The  extreme  northernmost  point  of  Iceland  just 
touches  the  Arctic  Circle. 

3  In  his  book  D*  Mcnsura  Orbis  Terrae,  cap.  7,  he  identifies  the  isle  with  Thule; 
and  the  reports  of  the  monks  point  rather  to  Iceland  than  to  the  Faeroe  Isles,  a 
group  which  Dicuil  mentions  elsewhere,  and  which  therefore  he  cannot  mean  by 
his  Thule.  The  name  Thule  has  of  course  been  applied  by  different  writers  to 
different  lands.  When  Tacitus  says  that  it  was  seen  in  the  distance  by  the  fleet  of 
Agricola,  he  probably  means  cither  Shetland  or  the  Fair  Isle  between  the  Shct' 
lands  and  the  Orkneys. 


PRIMITIVE  ICELAND  265 

the  latter  half  of  the  ninth  century.  He  called  it  Snae- 
land,  or  Snovvland.  A  second  visitor,  a  Swede  named 
Gardar,  sailed  round  it ;  a  third  (Floki,  a  Norseman) 
landed,  and  gave  it  the  name  it  still  bears.  But  though 
the  news  of  the  discovery  soon  spread  far  and  wide 
through  the  whole  Northland,  the  isle  might  possibly 
have  lain  unoccupied  but  for  the  events  that  were  passing 
in  Norway.  King  Harald  the  Fairhaired  was  then  in 
the  full  career  of  his  conquests.  The  great  battle  of 
Hafrsfjord  had  established  his  power  in  Central  and 
Southern  Norway,  and  he  was  traversing  the  fjords  with 
his  fleet,  compelling  the  petty  chieftains  who  stood  at 
the  head  of  the  numerous  small  independent  communi- 
ties that  filled  the  country  to  acknowledge  his  supremacy, 
and  imposing  a  tax  upon  the  land-holding  freemen. 

The  proud  spirit  of  the  warriors  who  for  more  than  a 
century  had  been  ravaging  the  coasts  of  all  Western 
Europe  could  not  brook  subjection,  and,  being  unable 
to  offer  a  united  opposition,  the  boldest  and  bravest 
among  them  resolved  to  find  freedom  in  exile.  Some 
sought  the  Orkneys,  Shetlands  and  Faeroe  isles,  already 
settled  by  Northmen.  Some  joined  the  Norwegian  set- 
tlers in  Ireland,  and  drove  the  Celtic  population  out  of 
some  districts  on  its  eastern  coast.  Others,  again,  fol- 
lowed Hrolf  Ganger  (Gongu  Hrolfr)  ('  the  Walker  '), 
or  Rollo  as  our  books  call  him,  a  Viking  who,  having  in- 
curred the  wrath  of  Harald,  sailed  forth  from  his  home 
on  the  fjords  near  Bergen  to  found  in  Northern  Gaul  a 
dynasty  of  Norsemen  whence  came  the  long  line  of  Nor- 
man dukes  and  English  kings,  Albaniquc  patrcs  atquc  altac 
inocnia  Romae.  And  yet  others,  hearing  the  praises  of  the 
lately-discovered  isle  far  off  in  the  ocean,  turned  their 
prows  to  the  west  and  landed  on  the  solitary  shores  of 
Iceland.  They  embarked  without  any  concert  or  com- 
mon plan ;  each  chieftain,  or  head  of  a  household,  taking 
his  own  family,  and  perhaps  a  group  of  friends  or  de- 
pendents ;  and  they  settled  in  the  new  land  where  they 
pleased,  sometimes  throwing  overboard  as  they  neared 


266  PRIMITIVE   ICELAND 

the  shore  the  wooden  columns,  adorned  with  figures  of 
Thor  and  Odin,  of  the  high-seat  in  their  old  Norwegian 
hall,  and  disembarking  at  the  point  to  which  these  were 
driven  by  the  winds  and  currents.  At  first  each  took  for 
himself  as  much  land  as  he  desired,  but  those  who  came 
later,  when  the  better  pastures  had  been  already  occu- 
pied, were  obliged  to  buy  land  or  to  fight  for  it ;  and  a 
curious  custom  grew  up  by  which  the  extent  of  territory 
to  which  a  settler  was  entitled  was  fixed.  A  man  could 
claim  no  more  than  what  he  could  carry  fire  round  in  a 
single  day ;  a  woman,  than  that  round  which  she  could 
lead  a  two-year-old  heifer.  So  rapid  was  the  immigra- 
tion, many  colonists  from  Norwegian  Ireland  and  the 
Scottish  isles,  Orkneys,  Shetlands  and  Hebrides  (the 
two  former  groups  being  then  Scandinavian)  joining 
those  who  came  direct  from  Norway,  that  in  sixty  years 
the  population  had  risen  (so  far  as  our  data  enable  it  to 
be  estimated)  to  about  50,000,  a  number  which  seems 
not  to  have  been  exceeded  down  to  the  census  of  A.D. 
1823.  With  those  who  came  from  Ireland  and  the  Hebri- 
des there  came  some  small  infusion  of  Celtic  blood, 
which  we  note  in  such  names  as  Njal,  Kjartan,  and  Kor- 
mak,  given  to  men  descended  from  the  daughters  of 
Irish  chieftains. 

Planting  themselves  in  this  irregular  way,  and  in  a 
country  where  the  good  land  lay  in  scattered  patches, 
and  where  deserts,  glaciers  and  morasses,  as  well  as  tor- 
rents, passable  only  with  difficulty  or  even  danger,  cut 
off  one  settlement  from  another,  the  first  settlers  did  not 
create,  and  indeed  felt  little  need  of,  any  political  or  social 
organization.  But  after  a  time  a  sort  of  polity  began  to 
shape  itself,  and  the  process  of  its  growth  is  one  of  the 
most  interesting  phenomena  of  mediaeval  history.  The 
elements  out  of  which  it  sprang  were  of  course  those  two 
which  the  settlers  had  brought  with  them  from  Norway, 
and  both  of  which  were  part  of  the  common  heritage  of 
the  Teutonic  race — the  habit  of  joint  worship  at  a  temple, 
and  the  habit  of  holding  an  assembly  of  all  freemen  to 


PRIMITIVE  ICELAND  267 

discuss  and  dispatch  matters  of  common  interest,  and 
more  especially  la.ws.uits  1.  This  assembly  resembled  the 
Old  English  Folk  Mot,  and  was  called  the  Thing,  a  name 
which  survives  in  our  English  word  Hustings  (Husting 
or  House  Thing),  the  platform  from  whence  candidates 
spoke  at  parliamentary  elections,  which  disappeared  in 
a.d.  1872  when  written  nominations  were  prescribed  by 
the  statute  which  introduced  vote  by  ballot.  The  ping  2 
was  held  at  the  temple,  usually  dedicated  to  Thor,  the 
favourite  deity  of  the  Norsemen  as  OSin  was  of  the 
Swedes;  since  the  place  of  worship  was  the  natural  centre 
of  the  neighbourhood,  and  the  ping  was  presided  over 
by  the  local  magnate  or  chief,  who  was  usually  also  the 
owner  or  guardian  of  the  local  temple,  there  being 
among  the  Scandinavian  peoples  no  special  sacerdotal 
caste. 

Now  when  a  Norse  chief  settled  himself  in  Iceland, 
one  of  his  first  acts  was  to  erect  a  temple,  often  with  the 
sacred  pillars  which  he  had  brought  from  the  ancestral 
temple  in  the  old  country.  The  temple  soon  became  a 
place  of  resort,  not  only  for  his  own  immediate  depen- 
dents, but  also  for  those  other  settlers  of  the  district  who 
might  not  be  rich  enough  to  build  and  maintain  a  shrine 
of  their  own.  Of  this  temple  the  chieftain  and  his  de- 
scendants were  the  priests  ;  and  as  the  meetings  of  the 
local  ping  were  held  in  it,  he  was  the  natural  person  to 
preside  over  such  meetings,  both  because  he  was  usually 
(though  not  invariably)  eminent  by  his  wealth  and  power, 
and  also  because  he  offered  the  sacrifices  and  kept  the 
sacred  temple-ring  on  which  judicial  oaths  were  taken, 
as  at  Rome  men  swore  at  the  Ara  Maxima  of  Hercules. 
Thus  the  priest  acquired,  if  he  had  not  already  enjoyed  it, 
the  position  of  a  sort  of  local  chieftain  or  magnate,  not 
unlike  those  kings  of  heroic  Greece  whom  we  read  of  in 

1  Not  but  what  the  habit  of  holding  such  an  assembly  has  existed  among  peo- 
ples of  very  diverse  race  in  many  parts  of  the  world.  It  existed  among  the  Greeks. 
It  exists  amonf  the  Kafirs  of  South  Africa. 

'-'  T  use  the  Icelandic  and  An^lo-Saxon  letter  ]>  in  this  word  to  distinguish  it  from 
the  common  English  word. 


268  •  PRIMITIVE   ICELAND 

Homer,  or  those  German  tribe-princes  whom  Tacitus 
describes.  Although  his  title  was  that  of  Gobi1  (origi- 
nally Gu8i)  or  priest,  a  word  derived  from  the  name  of 
the  Deity,  he  lost  in  becoming  the  depositary  of  a  cer- 
tain measure  of  political  power  most  of  such  religious 
character  as  his  office  had  possessed.  Nor  did  any  sanc- 
tity attach  to  his  person.  In  that  age  at  least  religion 
had  come  to  sit  rather  lightly  upon  the  Norsemen. 
Either  from  inner  decay,  or  from  the  influence  of  the 
Christian  peoples  with  whom  they  came  in  contact  be- 
yond the  seas,  the  old  faith  was  beginning  to  disinte- 
grate. Worship  was  often  cold  or  careless,  and  we  read 
f  of  men  who  regarded  neither  por  nor  OSin,  but  trusted 
in  their  own  might  and  main. 

The  Go5i  was  therefore  much  more  of  a  secular  than 
of  an  ecclesiastical  person,  a  chieftain  rather  than  a  priest 
in  our  sense  of  the  word  -.  His  powers  as  a  chieftain 
were  very  indefinite,  as  indeed  had  been  those  of  the  local 
chieftains  of  Norway.  He  was  only  the  first  among  a 
number  of  free  and  warlike  land-owners,  some  of  them 
equal  or  superior  to  him  in  lineage,  with  an  official  dig- 
nity which  was  little  more  than  formal  in  the  hands  of  a 
weak  man,  but  might  be  turned  to  great  account  by  a 
person  of  vigour  and  ability.  As  he  presided  in  the 
ping,  so  he  was  the  appropriate  person  to  see  to  the  regu- 
larity of  its  judicial  proceedings,  to  preserve  order,  and 
to  provide  for  the  carrying  out  of  any  measures  of  com- 
mon concern  on  which  it  might  determine.  When  any 
unforeseen  danger  or  difficulty  arose,  he  was  looked  to  to 
advise  or  take  the  lead  in  action ;  the  members  of  his 
ping  expected  aid  and  protection  from  him,  while  he, 
like  a  thegn  among  the  Teutons  of  contemporary  Eng- 
land, expected  support  and  deference  from  them.  But 
he  had  no  legal  powers  of  coercion.    Any  one  might  op- 

-  The  term  goSi  does  not  seem  to  have  been  used  in  Norway,  but  Ullila,  in  his 
translation  of  che  Bible  into  Gothic  (in  the  fourth  century  a.  i>.),  renders  Itptv?  by 
gudja.     The  $  is  pronounced  like  th  in  '  then.' 

*  It  is  true  that  as  the  Sagas  whence  we  draw  our  knowledge  of  the  Gooi  were 
all  written  down  at  a  time  when  heathenism  had  vanished,  it  Is  possible  that  they 
may  not  fully  represent  the  original  character  of  the  office. 


PRIMITIVE  ICELAXD  269 

pose  him  in  the  ping-  or  out  of  it.  Any  ping-man  might 
withdraw  at  pleasure,  join  himself  to  some  other  Go5i, 
and  become  a  member  of  some  other  ping *.  JThere  was/ 
it  must  be  noted,  no  territorial  circumscription  corre- 
sponding to  the  ping.  Land  had  nothing  to  do  with  the 
position  held  by  the  Go5i  to  the  pingmen,  and  herein,  as 
well  as  in  the  absence  of  the  relation  of  commendation 
and  homage,  we  see  a  capital  difference  between  this  sys- 
tem and  feudality.  Nor  was  the  post  of  GoSi  a  place 
whence  much  emolument  could  be  drawn.  The  ping- 
men were  indeed  required  to  pay  a  sort  of  tax  called  the 
temple  toll  (hoftollr),  but  this  did  no  more  than  meet  the 
expenses  to  which  the  Go5i  was  put  in  keeping  up  the 
temple,  and  feasting  those  who  came  to  the  sacrifices: 
it  gave  him  no  revenue  which  he  could  use  to  extend  his 
authority.  Accordingly,  the  GoSorS  was  regarded  as 
implying  power  rather  than  property,  and  was  not  (after 
the  introduction  of  Christianity)  liable  to  the  payment  ol 
tithe.  A  curious  feature  of  the  office  was  its  alienability. 
Probably  because  it  had  arisen  out  of  the  ownership  of 
the  temple,  it  was  regarded  as  a  piece  of  private  pro- 
perty which  could  be  transferred  by  way  of  sale  or  gift, 
and  could  be  vested  in  several  persons  jointly.  And 
similarly  a  number  of  GoSorSs  might  by  inheritance  of 
purchase  become  vested  in  the  same  person. 

Thus  in  the  years  immediately  following  the  immigra- 
tion there  sprang  up  round  the  coasts  of  Iceland  a  great 
number  of  petty,  unconnected  and  loosely  aggregated 
■groups  of  settlers.  We  must  not  venture  to  call  them 
states,    scarcely    even    communities,    not    principalities, 

1  The  illustrious  Konrad  Maurer,  to  whose  learned  researches  and  sound  judge- 
ment every  one  who  writes  about  the  constitutional  antiquities  of  Iceland  mus: 
feel  infinitely  indebted,  thinks  that  the  name  of  Gotii  was  used  in  Norway  before 
the  emigration  to  Iceland,  though  probably  the  priest  was  there  a  less  important 
person  than  he  became  in  Iceland,  where  his  custody  of  the  temple  put  him  to 
some  extent  in  the  position  held  in  the  Norwegian  motherland  by  the  hereditiry 
chieftain,  who  was  in  Norway  the  natural  president  of  the  local  Thing. 

Those  who  desire  to  study  the  early  history  of  Iceland  may  be  referred  to  the 
writings  of  Dr.  Maurer,  and  especially  to  his  Island  his  zutit  Untergar.ge  des  Frei- 
staats  (Munich,  1874),  and  his  Beitragc  zur  Rechtsgeschichte  des  Germanisc/uau 
Nordens  (Munich,  1S52) 


270  miMim  i:  i<i:i.\\i> 

such  as  those  which  were  beginning  to  spring  up  in 
Western  Europe,  not  in  a  strict  sense  republics,  yet 
nearer  to  republics  than  to  principalities,  organized,  so 

i/far  as  they  were  organized  at  all,  chiefly  for  the  purposes 
nf-jimtjrj'  and  particularly  for  the  exaction  of  fines  for 
homicide,  but  with  no  settlecj  plan  of  government,  no 
written  laws — it  indeed  writing  was  yet  in  use  at  all — 
no  defiifed  territory,  and  a  comparatively  weak  cohesion 

t,  among  their  own  members,  the  Thingmen.  The  really 
effective  tie  was,  in  those  ages,  the  tie  of_kindred  ;  and 
the  pingmen  of  the  same  GoSi  were  not  kinsfolk,  were 
not  a  clan  or  sept, like  the  Celtic  communities  of  Scotland 
and  Ireland.  ^That  tie  was  strong  enough  to  involve  a 
whole  district  in  the  blood-feud  of  a  single  man.}  For 
when  any  member  of  a  family  was  killed,  it  was  the  duty 
of  his  nearest  relatives  to  avenge  his  death,  either  by 
obtaining  a  full  compensation  in  money,  for  which,  if  the 
offender  refused  to  pay  it,  a  lawsuit  was  brought  in  the 
ping,  or  else  by  slaying  the  murderer  or  some  member 
of  his  family.  Thus  a  feud,  like  a  Vendetta  in  Corsica^Dr 
in  Eastern  Kentucky,  might  go  on  from  generation  to 
generation,  each  act  of  revenge  drawing  others  in  its 
train,  and  tending  to  draw  more  and  more  families  into 
the  feud,  because  when  fights  took  place,  the  friends  of 
each  party  often  joined,  and  if  some  were  killed,  their 
relatives  had  a  new  blood-claim  to  prosecute. 

^Between  the  different  communities  that  had  thus 
sprung  up  there  was  no  political  tie  whatever.}  There 
did  not  as  yet  exist  any  Icelandic  nation,  much  less  any 
common  Icelandic  State  of  which  all  the  communities 
felt  themselves  members.  (  Each  was  an  independent 
body;  and  if  a  dispute  arose  between  the  members  of 
two  different  pings,  there  was  no  means  of  adjust  in  g 
it  except  by  voluntary  submission  to  the  award  of  some 
other  ping  or  else  by  open  war}  Seeing  that  S layings  and 
plundering^  and  burnings  were  everyday  occurrences  in 
this  fierce  race,  where  Vikingry  (i.e.  piracy)  was  the  most 
honoured  pursuit,  such  cases  were  very  frequent,  espe- 


PRIMITIVE   ICELAND 


273 


cially  as  to  take  revenge  for  a  kinsman's  deai,njn„ 
deemed  a  sacred  duty.  ijne 

Even  when  the  offender  belonged  to  the  same  a 
as  the  injured,  it  often  happened  that  the  influence  i 
his  kindred,  or  the  favour  of  the  Go5i  of  the  place,  01 
(some  technical  error  in  bringing  the  suit  for  compensa- 
tion, prevented  justice  from  being  done.  Accordingly 
the  need  for  some  remedy,  for  some  further  political,  or 
rather  judicial,  organization  of  the  island  began  to  be 
generally  felt,  for  however  fond  men  may  be  of  killing 
one  another,  the  Norsemen  were  always  a,lso  fond  of 
money,  and  would  often  prefer  a  blood-fine  to  the  satis- 
faction of  killing  their  enemy,  could  the  blood-fine  be 
secured.)  Thus  it  came  to  pass  that,fabout  fifty  years 
after  the  first  colonization,  a  chief  named  UlfljotSvenera- 
ble  from  his  age  and  abilities,  came  forward  to  propose 
a  scheme.  jHe  urged  the  creation  of  one  general  ping 
for  the  whore~^untTy7"^^^e~!injIiatt:ers  of  common  in- 
terest might  be  discussed,  and  all  suits  which  could  not 
be^ despatched,  or  had  not  been  fairly  dealt  with  in  the 
local  pings,  might  be  decided.']  Travelling  round  the 
island,  he  brought  over  to  his  views  the  most  influential 
GoSis  and  other  leading  men;  andliFtlieir  request,  sailed 
to  Norway  to  inquire  into  the  laws  prevailing  there,  and 
to  draw  up  regulations  for  this  new  general  ping;  some- 
what as  envoys  were,  according  to  the  Roman  story, 
sent  from  Rome  to  the  Greek  cities  to  bring  back  ma- 
terials and  suggestions  for  the  legislation  of  the  Decem- 
virs. At  the  same  time  Ulfljot's  foster-brother,  Grim 
Geitskor  ('  Goat's  Shoe  '),  the  fleetest  man  and  nimblest 
rock-climber  in  Iceland,  was  commissioned  to  traverse 
the  island  in  s,earr"  nf  n  plnrp  gnjj-ahjp  for  the  meeting  of 
the  proposed  assembly.  After  long  wanderings,  Goat's 
Shoe  hit  upon  a  spot  to  which  the  name  of  pmigxVellir  1, 
'  the  plains  of  the  ping,'  has  ever  since  belonged,  in 

1  Thing  Vellir  is  the  nominative  plural,  Thing  Valla — the  form  in  which  the 
word  has  become  more  familiar  to  Englishmen,  and  which  remains  in  Thingwall 
(near  Liverpool),  Tynwakl  (in  the  Isle  of  Man),  and  Dingwall  (in  Rosshire) — is  the 
genitive  plural. 


PRIMITIVE    Ki:i   I  \  /> 
270 

ith-west  ^£ _the  islandLal^utjdglit.JbQiu^slj:iding 
such  ^here  Reykjavik  the  present  capital  now  stands, 
**  es  /ithln  the  district  ofjthc  first  temple  that  had  been 
nc.*Hded  by  Ingolf,  the  earliest  Norwegian  settler.    This 
^circumstance  gave  the  place  a  sort  of  sacredness.    There 
was  plenty  of  water  and  pasture,  and  the  lake  which 
washed  the  plain  of  meeting  abounded  (as  it  does  to  this 
day)  with  trout  and  wild  fowl.     (It  abounds  also  with 
most  pernicious   small  black   flies,  whereon  the  trout 
grow  fat,  but  which  make  fishing  not  always  a  pleasure.) 
""Here,  accordingly,  Ulfljot  having  in  the  meantime  re- 
turned fromj^orway  with  his  materials  for  legislation, 
the(first  ATjnng^or^GeneraLAsscmbly  of  all  Icejbinchmet 
in  a.dTo^o,  and  here  it  continued  to  meet,  year  after  year, 
for  a  fortnight  in  the  latter  half  of  June,  till  the  year 
1800  1,  one  of  the  oldest  national  assemblies  in  the  civi- 
lized world,  and  one  of  the  very  few  which  did  not,  like 
the  English  Parliament  and  the  Diet  of  the  Romano- 
Germanic  Empire,  grow  up  imperceptibly  and,   so  to 
speak,  naturally,  from  small  beginnings,  but  was  formally 
and  of  set  purpose  established,  by  what  would  have  been 
called,  had  paper  existed,  a  paper  constitution,  that  is  to 
say  by  the  deliberate  agreement  of  independent  groups 
of  men,  seeking  to  attain  the  common  ends  of  order  and 
justice.  ^|kv/\)0^fV>>vu  ^  |K*  Cd\lhU.UOft  ^ 

There  was  thus,  created,  before  the,  middle  of  trn*_tei-|tli 
century,  when  Athelstan  the  Victorious  2  was  reigning 
in  England  and  defeating  Scots  and  Northumbrians  at 
Brunanburh  by  the  help  of  the  Icelandic  warriors  Thorolf 
and  Egil,  sons  of  Skallagrim  :!,  when  the  Saxon  king 
Henry  the  Eowler  was  repelling  the  Magyar  hosts  and 
laying  the  foundations  of  the  German    Kingdom,  and 

1  Since  this  lecture  was  delivered  the  Aiding  which  since  1843  had  led  a  feeble 
life  at  Reykjavik  as  a  sort  of  advisory  council,  has  been  re-established  as  a  repre- 
sentative governing  assembly  under  a  new  constitution  granted  to  Iceland  in  1874. 
It  now  meets  every  second  year  at  Reykjavik. 

a  The  Saga  of  Ef,'il  calls  him  A'fialsteinn  hinn  SlfrrScell  (///.  'blessed  with  vic- 
tory'). It  is  curious  that  lliis  title  should  have  been  preserved  in  Iceland  and  a|>- 
parently  have  been  forgotten  in  England. 

3  See  Egifs  Saga  Skallagrimssonar,  chap.  54. 


PRIMITIVE  ICELAND  273 

when  the  power  of  the  last  Carolingians  was  beginning 
to  pale  in  Gaul  before  the  rising  star  of  the  Capetian  line, 
a  sort/of  republic  embracing  the  whole  isle  of  Iceland,  a 
republic  remarkable  not  only  from  its  peculiar  political 
structure,  but  also,  as  will  presently  appear,  from  the 
extremely  Hmite^raggeToT  its  governmental  activity. 
About  thirty  years  later  its  constitution  was  amended  in 
some  important  points,  and  forty  years  after  that  time, 
about  the  year  1004,  further  alterations  were  made,  the 
details  of  which  are  too  much  disputed  as  well  as  too  r  , 
intricate  to  be  explained  here.  It^general  outline^  in  its 
completed  shape,  was  the  following.  \The  total  number  {? 
of  regular  pings,  and  priest-chieftaincies  or  GoSorSs, 
was  fixed  at  thirty-nine,  nine  for  each  of  the  four  Quar- 
ters into  which  the  island  wras  divided,  except  the  North 
Quarter,  which,  in  order  to  allay  certain  local  suscepti- 
bilities, was  allowed  twelve.  Each  of  these  thirty-nine 
local  pings  was  presided  over  by  its  GoSi.  Then,  for 
certain  purposes,  three  of  these  pings  were  united  to 
form  a  larger  ping-district  (pingsokn),  of  which  there 
were  therefore  thirteen  in  all,  viz.  four  for  the  North 
Quarter,  and  three  for  each  of  the  other  Quarters. 
There  was  also  one  still  larger  ping  for  each  Quarter, 
called  the  Fjor3ungs]>ing.  It  seems  to  have  grown  up 
before  the  institution  of  the  Aiding,  and  to  have  repre- 
sented the  first  stage  in  the  organization  of  a  larger  com- 
munity out  of  the  small  local  pings.  But  it  tended  in 
course  of  time  to  lose  its  importance.  1 
(  Ordinary  lawsuits  and  questions  of  local  interest  were 
determined  in  these  minor  pings,  while  graver  suits,  or 
those  in  which  the  parties  belonged  to  different  pings, 
or  where  it  was  sought  to  reverse  the  decision  of  a  local 
ping,  as  well  as  all  proposals  for  alterations  of  the 
general  law,  were  brought  before  the  Al]>ing^at  its  an- 
nual meeting  in  June.  It  seems  to  have  been  therefore 
partly  a  court  of  first  instance  and  partly  a  court  of  ap- 
peal. Now  the  Ail'ing  was_open,  like  other  primary 
Teutonic  and  Hellenic  assemblies,  to  all  freemen  who 
18 


274 


PRIMITIVE   ICELAND 


chose  to  attend  ;^bu£iJs  powers  were  pra,c_tkally_exercised 
by  a  limited  number  of  persons,  viz.  the  GoSis  and  cer- 
tain members  nominated  by  them. 
Osw_v A  /  ^or  judicial  purposes,  the  Alfing  acted  through  four 
~^*  Courts,  one  for  each  Quarter.^  Each  Quarter  Court 
(fjorSungsdomr)  consisted,  according  to  one  view,  of 
thirty-six  members,  viz.  the  GoSis  of  the  Quarter  with 
twenty-four  nominees,  and,  according  to  another  view, 
of  nine  persons_no.nii.nated  by  the  GoSis  of  the  Quarter. 
There  was  also  a  fifth  Court  galled  the  fimtardomr),  in- 
stituted later  than  the  others  \\^d.  1004)}  on  the  sugges- 
tion of  the  famous  jurist  Xjal,  son  of  Thorgcir.  This 
Court,  which  exercised  jurisdiction  in  cases  where  one 
of  the  other  Courts  had  failed,  was  composed  in  a  some- 
what different  way,  acted  under  a  more  stringent  oath, 
and  gave  its  decisions  by  a  majority,  whereas  in  other 
Courts  unanimity  was  required.  It  seems  to  have  been 
intended  not  only  to  avert  armed  strife  by  providing  a 
better  method  for  settling  disputes^ut  alsT>  to  organize 
the  country  as  a  whole  and  give  it  something  approach- 
ing to  a  central  authority.  This  result,  however,  was 
not  attained,  the  social  and  physical  obstacles  proving 
insuperable. 

l(In  these  judicial  committees  of  the  Aiding  lawsuits 
were  brought  and  argued  with  an  elaborate  formality 
and  a  minute  adherence  to  technical  rules  far  more  strict 
than  is  now  practised  anywhere  in  Europe}  a  fact  which 
will  appear  the  more  extraordinary  when  we  remember 
that  in  those  days^>oth  the  law  and  all  the  appropriate 
forms  of  words  which  the  parties  were  obliged  to  employ 
were  not  written,  but  preserved  solely  by  the  memory  of 
individual  men.^ 

^Eor  legislative  purposes  the  Al)>ing  acted  through  an- 
other committee  of  144  persons,  only  one-third  (forty- 
eight)  of  whom,  being  the  thirty-nine  GoSis  and  nine  no- 
minees, had  the  right  of  voting.  The  nine  nominees 
were  persons  chosen  by  the  GoSis  of  the  East,  South,  and 
West  Quarters,  three  by  each  Quarter,  in  order  to  give 


PRIMITIVE  ICELAND  275 

each  of  these  Quarters  the  same  strength  in  the  Com- 
mittee as  the  North  Quarter  had  with  its  twelve  Go5is. 
Each  of  the  forty-eight  appointed  two  assessors  who  ad- 
vised him,  sitting  one  behind  him  and  the  other  in  front  of 
him,  so  that  he  could  readily  seek  their  counsel,  and  thus 
the  144  were  made  up,  the  forty-eight  being  described  as 
the  Middle  Bench.  This  Committee  was  called  the  Lo- 
gretta (lit.  '  Law  Amending  '),  and  by  it  all  changes  in  the 
law  were  made,  and  all  matters  of  common  interest  dis- 
cussed. It  was  essentially  an  aristocratic  bodyXas  indeed 
the  whole  Constitution  bore  an  aristocratic  colour\ 
though  there  was  no  such  thing  as  a  formal  distinction 
of  rank  l,  much  less  any  titled  nobility.  After  the  intro- 
duction of  Christianity  in  a.d.  1000,  the  two  bishops  were 
added  to  the  Logretta,  while  at  the  head  of  all,  making 
up  the  number  of  members  to  147,  stood  an  elected  offi- 
cer, called  the  Speaker  of  the  Law\ 

This  last-named  personage,  the  solitary  official  of  the 
republic,  is  one  of  the(most  curious  parts  of  the  system.^ 
He  was  called  the  LogsogumaSr,  literally  '  Law^sgy- 
man/  or,  as  we  may  render  it,  Speaker,  or  Declarer,  of 
the  Law,  and  was  the  depositary  and  organ  of  the  un- 
written common  law  of  the  country.  It  was  his  duty  to 
recite  .aloud,  in  the  hearing  of  the  greater  number  of  i 
those  present  at  the  ping,  the  _whole  law  of  Iceland,  •» 
going  tlirou^h  it  in  the  three  years  during  which  he  held 
office,;  and  to  recite_once  in  every  year  the  formulas  of 
actions,  this  being  the  part  of  the  law  which  was  of  most 
practical  importance.  Besides  this,  he  presided  in  the 
Logretta,  giving  a  casting  vote  where  the  votes  were 
equal ;  and  he  was£>ound  to  answer  every  one  who  asked 
him  what  the  provisions  of  the  law  actually  were^al- 
though  not  required  to  advise  applicants  as  to  the  course 
they  ought  to  follow  in  a  given  case._)  When  in  any  suit 
a  question  of  what  was  the  legal  rule  arose,  reference 
was  made  to  him,  and  his  decision  was  acceptedaaJfinal. 

1  Although  the  penalty  for  killing-  a  man  of  high  lineage  was  heavier  than  that 
for  an  ordinary  freeman  :  and  one  perceives  from  the  Sagas  how  carefully  genea- 
logies were  preserved  and  what  great  respect  was  paid  to  long  descent. 


27f>  /•/,'/ 1//77  I  E   ICELAND 

For  these  labours  he  received  a  yearly  salary  of  two  hun- 
dred ells  of  VaCmal  (the  blue  woolen  cloth  which  tHen 
served  as  currency,  and  which  continued  to  do  so,  for 
some  purposes,  down  to  our  own  time),  besides  one-half 
of  the  fines  imposed_at  the  Aiding.  He  was  of  course 
selected  from  the  most  accomplished  lawyers  of  the  time. 
His  declarations  of  the  law  were  conclusive,  at  least  dur- 
ing his  three  years'  term  of  office,  in  all  causes  and  over 
all  persons.  Thus  he  exercised  a  kind  of  quasi-judicial 
or  quasi-legislative  power,  and  has  been  fancifully  com- 
pared tQthe  Roman  Praejor,  also  an  officer  elected  for  a 
term,  also  by  his  edicts  the  declarer  of  the  law  he  had 
to  administer1.  (But\  the  t Law-Speaker  was  in  reality 
neither  judge  nor  magistrate,  nor,  indeed,  a  legislator, 
except  in  so  far  as  the  right  to  enounce  and  interpret 
borders  on  legislation.  He  delivered  no  judgements,  he 
had  no  power  of  enforcing  a  decision  or  of  punishing  an 
offender.  He  did  not  even  open  the  Aiding  and  take  the 
responsibility  for  keeping  order  at  it,  for  these  functions 
belonged  to  the  GoSi  of  the  district,  called,  because  the 
Aiding  met  within  his  jurisdiction,  the  AllsherjargoSi 
(priest  of  the  whole  hostj.  ftThe  LdgsogumaSr  was  in 
fact  nothing  but  the  living  voice  of  the  law,  enunciating 
those  customary  rules  which  had  come  down  from  the 
[foretime,  rules^vhich  all  accepted,  though  they  were  not 
preserved  in  any  written  form,  and  though  they  must 
have  been  practically  unknown  to  the  great  majority  of 
the  citizens. 

The  office,  although  more  important  in  Iceland  from 
the  absence  of  a  king  or  local  prince,  was  one  of  which 
we  find  traces  among  other  Scandinavian  peoples,  or  at 
least  among  the  Norsemen.     It  appears  in  Norway,  in 

*  the  Orkneys,  and   in  the   Hebrides   (though   there  the 
'  name  is  Logman,  which  in  Iceland  means  merely  one 

*  le^rjTed_in_the  law). 

(  Thingvelluv_vvhcre  the  Al|>ing_met  from  the  year  930 

•  Viva  vox  juris civilis  was  the  description  which  the  Romans  used  to  tfivc  of 
their  Praetor,  as  to  whom  sec  Essay  XIV,  p.,6gi. 


• 


PRIMITIVE   1VELA.XD  277 

down  to  a  time  within  the  memory  of  living  men,  is  a 
spot  not  less  remarkable  physically  than  memorable  for 
the  stirring  events  of  which  it  was  the  witness.  It  is  a 
slightly  undulating  plain,  some  five  miles  long  by  three 
wide,  washed  on  the  south  by  a  broad  island-studded 
lake,  and  girdled  in  at  its  northern  end  by  lofty  moun- 
tains, their  black  volcanic  rocks  streaked  here  and  .there 
with  snow-beds.  The  surface  is  all  of  lava,  sometimes 
bare  and  rugged,  sometimes  covered  with  thin  brush- 
wood, dwarf  birches  and  willows,  sometimes  smoothing 
itself  out  into  sweeps  of  emerald  pasture,  but  everywhere 
intersected  by  profound  chasms,  formed  when  the  whole 
was  a  molten  mass.  East  and  west  it  is  hemmed  in  by 
two  lines  of  precipices,  whose  rugged  sides  seem  to  show 
that  the  plain  between  them  has,  at  some  remote  period, 
perhaps  when  the  lava-flood  was  cooling,  sunk  suddenly 
down,  leaving  these  walls  to  be  the  edges  of  the  plateau 
which  stretches  away  backwards  to  the  east  and  west. 
Under  the  western  of  these  two  walls,  on  the  margin  of 
the  lake,  just  where  it  receives  the  stream  which  has  flung 
itself  in  a  sparkling  cascade  over  the  precipice,  the  place 
of  meeting  was  fixed.  The  chieftains,  who  came  from 
every  corner  of  the  island  with  a  following  of  armed  com- 
panions and  dependents,  because  broils  were  frequent, 
and  armed  strife  might  interrupt  the  progress  of  a  law- 
suit, built  their  booths — erections  of  stone  and  turf  roofed 
for  the  time  with  cloth  or  canvas — along  the  banks  of  the 
Oxara  river,  and  turned  out  their  horses  to  pasture  by 
the  lake.  Places  were  appointed  for  the  holding  of  the 
several  courts,  while  the  Logretta  or  legislative  commit- 
tee sat  on  a  spot  which  nature  seemed  to  have  herself 
designed  for  the  purpose.  Two  of  the  extraordinary 
chasms  by  which  the  plain  is  seamed,  each  some  eighty 
feet  deep,  and  filled  for  the  lower  fifty  feet  by  bright 
green  water,  enclose  a  narrow  strip  of  lava  some  two 
hundred  yards  long,  cutting  it  off,  except  at  one  point 
where  there  is  a  narrow  entrance  which  three  men  might 
hold,  from  the  surrounding  land.    The  surface  is  nearly 


278  PRIMITIVE    ICELAND 

level,  covered  by  short  grass  now  browsed  by  a  few 
sheep ;  and  there  is  nothing  to  tell  that  in  this  space,  in 
the  full  sight  of  the  assembled  multitude,  the  heroes  of 
ancient  Iceland  spoke  and  voted  their  laws,  and  gave 
their  verdicts ;  while  from  an  eminence  in  the  midst  of 
the  enclosure,  still  called  the  Logberg,  or  Hill  of  Laws, 
the  Law-Speaker  recited  the  law  of  the  nation  in  the  sight 
and  hearing  of  the  multitude  that  stood  on  the  further 
side  of  the  chasms1.  Not  only  so:  there  is  all  round 
nothing  whatever  to  show  that  the  place  has  ever  been 
different  from  what  it  is  now.  Between  the  Logberg  and 
the  lake  stand  the  little  wooden  church  and  its  humble 
parsonage.  No  other  house  is  near,  nor  any  sign  of 
human  life.  Only  the  islet  is  still  pointed  out  in  the  river 
where  the  solemn  duels  which  the  laws  of  Iceland  recog- 
nized were  fought,  and  the  deep  green  swirling  pool  into 
which  women  condemned  for  witchcraft  were  hurled 
from  the  brink  of  the  precipice.  In  most  of  the  spots  to 
which  the  traveller  is  drawn,  by  memories  of  constitu-  - 
tional  freedom  or  of  political  struggles,  his  imagination  */ 
is  aided  by  the  remains  of  the  buildings  where  assemblies  "^v 
met  or  monarchs  sat  enthroned.     Here  man  has  left  -£ 


nothing  to  speak  of  his  presence,  and  it  is  hard  to  realize, 
when  one  looks  on  this  silent  and  desolate  scene,  that  it 
was  once  rilled  by  so  much  strenuous  life,  and  so  often 
resounded  to  the  clash  of  arms. 

[  For  the  Al]>ing  was  not  merely  an  assembly  for  the 
dispatch  of  business:  it  was  the  great  annual  gathering 
of  the  whole  nation, \a  gathering  all  the  more  needed  in 
a  land  where  there  are  no  towns,  and  most  men  live  miles 
away  from  their  nearest  neighbours.  To  it  chieftains 
rode  with  their  wives  and  daughters  and  a  band  of  armed 
retainers  from  the  furthest  corners  of  the  country,  tak- 
ing, perhaps, as  those  must  have  done  who  came  from  the 

1  Since  this  was  written,  some  eminent  antiquaries,  including  my  lamented 
friend  Dr.  GuSbrand  Vigfiisson,  have  argued  that  the  true  I.iigbcrg  is  to  be 
sought  not  in  this  spot  which  tradition  indicates,  but  on  the  cdpe  of  the  great  lava 
rift  called  the  Almannapja  to  the  west  of  the  river.  See  The  Saga  Steads  of  let- 
land,  by  \V.  G.  Collingwood  and  Jon  Stcfansson,  i3w,  pp.  m-"7- 


'I 


PRIMITIVE  ICELAND  279 

East  fjords  along  the  northern  edge  of  the  great  central 
desert,  a  fortnight  or  more  on  the  way.  Shipmasters 
from  Norway  or  Ireland  brought  their  wares  for  sale. 
Artisans  plied  their  trades.  We  are  told  that  even  jug- 
glers' sheds  and  drinkingjbooths  were  set  up,  and  games 
of  all  kinds  carried  on.  It  was  a  great  opportunity  not 
only  for  the  renewing  of  friendships  between  those  who 
lived  in  distant  parts  of  the  country,  but  for  the  arranging 
of  adoptions  and  marriages ;  and  the  Sagas  mention  nu- 
merous instances  in  which  proposals  were  made  or  be- 
trothals entered  into  at  a  meeting  of  the  Aiding,  in  most 
of  which  instances  the  will  of  the  maiden  seems  to  have 
prevailed  over  that  of  her  parents.  It  was  midsummer, 
when  there  is  in  those  latitudes  no  night,  but  the  glare  of 
day  subsides  for  a  few  hours  into  an  exquisitely  rich  and 
tender  twilight,  clothing  the  sky  with  colours  never  seen 
in  our  duller  air.  And  we  can  fancy  how  those  who  fol- 
lowed their  fathers  to  the  Aiding  found  compensation 
for  all  the  loneliness  and  gloom  of  the  long  winter  in  this 
one  fortnight  of  vivid  mirth  and  excitement. 
f  The  meeting  of  the  Aiding  wras  not  only  the  centre  of 
the  political  life  of  the  Republic}  (it  was,  so  to  speak, 
the  Republic  itself,  for  it  was  only  then  that  the  Republic 
became  visible  before  men's  eyes  or  acted  as  a  collective 
whole.)  LDuring  the  rest  of  the  year  lawsuits  and  every- 
thing else  of  public  concern  were  left  to  the  Quarter 
pings  and  local  pings,  and  to  the  local  Go'Sis.^lThe  few 
laws  or_resolutions  of  general  concern  which  the  Alj'ing 
passed — they  were  few,  because  its  legislative,  activity 
was  chiefly  occupied  in  regulating  its  own  judicial  pro- 
ceedings— were  probably  meant  to  be  accepted  and  ob- 
served over  the  whole  island,  but  the  Al ping  did  not  at- 
tejuptjojenforce  them,  and  indeed  had  no  machinery  by 
which  it  could  do  soj|  Each  GoSi  was,  in  a  loose  way,  a 
sort  of  executive  magistrate  over  his  own  pingmen;  but 
he  did  not  derive  his  authority  from  the  Central  or  Fede- 
ral Al)»ing,  and  he  was  not  responsible  to  the  Alfing  for 
its  exercise.    The  Republic,  if  we  may  so  call  it,  had  no 


280  PRIMITIVE  tCBLAND 

Executive  whatever.  Its  sole  official  was  the  Law- 
Speaker  (of  whom  more  anon),  but  his  function  was  onl) 
to  declare  the  law,  and  was  exercised  only  while  the 
Aiding  was  sitting.  At  other  times  the  constituent  pings 
and  GoSis  were  virtually  quite  independent,  and  might 
and  often  did  carry  on  war  with  one  another,  subject  to 
no  penalty  or  liability  for  so  doing,  save  in  so  far  as  an 
action  for  compensation  might  be  brought  against  any 
one  who  had  killed  another.  (  There  was  no  police,  no 
militia,  no  fleet,  no  army,  nor  any  means,  like  those  pro- 
vided in  the  feudal  kingdoms  of  contemporary  Europe, 
of  raising  an  army.)  \The  isle  lay  so  far  away  from  all 
other  countries  except  Greenland,  on  which  an  Icelandic 
colony  had  been  planted,  that  it  happily  did  not  need  to 
have  a  foreign  policy]  \There  was  neither  public  revenue 
nor  public  expenditure,  neither  exchequer  nor  budget. 
No  taxes  were  levied  by  the  Republic,  as  indeed  no  ex- 
penses were  incurred  on  its  behalf/ 

The  Icelandic  Republic  was  in  fact  a  government  de- 
veloped only  upon  its  judicial  and  (to  a  much  smaller  cx- 
.  tent)  upon  its  legislative  side,  omitting  altogether  the 
executive  and  international  sides,  which  were  in-  the 
Greek  and  Roman  world,  and  have  again  in  the  modern 
world,  become  so  important. I  For  a  community  to  exist 
with  such  an  absence  of  administrative  organization  was 
obviously  possible  only  in  a  region  like  Iceland)  severed 
by  a  wide  and  stormy_sea  from  the  rest  of  the_world.  and 
with  a  very  thin  and  scattered  population  ;  possible  too 
only  in  a  smiple^sJLaJ^jQf_sx>dLety  where  mnn'_s_nppds  are 
few  and  every  one  fends  for  himself. 
^Thc  system  whose  outlines  1  have  sought  to  draw  is 
full  of  interest  and  suggestion,  as  well  to. the  student  of 
legal  theory  as  to  the  constitutional  historian.-  Some 
inoderjTtlTQjTnsts__deriv(-'  law  from  the  Slate,  and  cannot 
think  o{law  as  existing  without  a  State)  A  few  among 
them  have  in  England1  gone  so  far  as  to  deny  that  Custo- 
mary Law  is  law  at  all,  and  to  define  all  Law  as  a  Com- 
mand issued  by  the  State  power.    |huVhere  in  Iceland  we 


PRIMITIVE  ICELAND  281 

find  Law,  and  indeed  (as  will  appear  presently)  a  com- 
plex and  highly  developed  legal  system,  existing  with- 
out  the  institutions  which  make  a  State  ;  for  a  community 
such  as  has  been  described,  though  for  convenience  it 
may  perhaps  be  called  a  Republic,  is  clearly  not  a  State 
in  the  usual  sense  of  the  word.  Of^Iceland^ indeed,  one 
may  say  that  so  far  from  the  State  creating  the  Law,  the 

(_  Law  created  the  State^— that  is  to  say,  such  State  organi-\ 
zation  as  existed  came  into  being  for  the  sake  of  decid-/ 
ing  lawsuits.     There  it  ended.  C  When  the  decision  had 
been  given,  the  action  of  the   Republic  stopped)     To 

/N  carry  it  out  was  left  to  a  successful  plaintiff;  and  the  only 
effect  a  decision  had.so'far  as  tin-  Courts  were  concerned, 
was  to  expose  the  person  resisting  it  to  the  penalties  of 
outlawry — that  is  to  say,  any  one  might  slay  him,  like 
Cain,  without  incurring  in  respect  of  his  death  any  lia- 
bility on  the  footing  of  which  his  relatives  could  sue  the 
slayer.  Law  in  fact  existed  without  any  public_responsi- 
bility  for  enforcing  it/  the  sanction,  on  which  modern 
jurists  so  often  dwell  as  being  vital  to  the  conception  of 
law)  being  found_  jjartly  in  public  opinion,  partly  in  the 

greater  in^^ciT,iity_^vJ2JlJlatt^.Ciliec^  to  ---  ^"e  °^  tne  l)er~ 
son  who  disregarded  a  judgement.  "Yet  law  was  by  no 
means  ineffective.  Doubtless  it  was  often  defied,  and 
sometimes  successfully  defiedr  That  Happened  every- 
where in  the  earlier  Middle  Ages,  and  happens  to-day  in 
semi-civilized  peoples.  (But;  the  facts  that  the  Aljnng 
maintained  so  active  a  judicial  life,  that  the  field  of  law 
was  cultivated  so  assiduously,  and  the  details  of  proce- 
dure worked  out  with  so  much  pains  and  art,  that  law- 
suits were  contested  so  keenly  and  skilfully — all  these 
facts  seem  to  prove  that  law  must  have  in  the  main  had 
its  course  and  prevailed,  for  it  is  hard  to  suppose  that  all 
this  time  and  pains  would  have  been  during  two  centuries 
or  more  devoted  to  a  pursuit  which  had  no  practical  re- 
sult. ^The  contemporary  kingdoms  and  principalities  of 
the  earlier  Middle  Ages  lived  by  the  vigour  of  the  execu- 
tive.} There  was  in  them  very  little  of  a  State  administra- 


\ 


) 


PRIMITIVE  ICELAND 

tion,  and  the  law  was  in  most  or  all  of  them  older  than  the 
State — that  is  to  say,  it  had  existed  in  the  form  of  cus- 
toms recognized  and  obeyed  before  efficient  means  were 
provided  for  enforcing-  it.  So  far  they  resembled  Ice- 
land ;  and  the  same  may  be  said  of  the  city  republics  of 
Italy  and  Germany.  |But  Iceland  is  unique  as  the  ex- 
ample of  a  community  which  had  a  great  deal  of  law  and 
no  central  Executive,  a  great  many  Courts  and  no  au- 
thority to  carry  out  their  judgements.^ 

Tli£_process  by  which  the  law  of  Iceland  grew,  though 
less  exceptional  than  was  its  political  constitution,  il- 
lustrates very  happily  the  origin  of  Customary  Law  and 
the  first  beginnings  of  legislation.  Law  springs  out  of 
usage.  The  gathering  of  the  neighbours  develops  into 
the  ping  or  local  assembly  of  Norway  and  the  Folk  Mot 
of  early  England.  I  It  treats  of  all  matters  of  common 
concern)  and  as  it  is  the  body  before  whom  complaints  of 
wrong  are  laid,  it  adopts  by  degrees  regular  set  forms 
of  words  for  the  statements  of  a  grievance,  and  for  the 
replies  to  those  statements.  /  The  usagcsbecoine  recog- 
nized customs,  prescribing  the  cases  in  which  redress 
may  be  claimed  and  the  defences  by  which  the  claims 
may  be  repelled^  ^The  forms  of  words  grow  more  elabo- 
rate and  come  to  be  considered  so  essential  that  a  varia- 
tion from  them  vitiates  the  claim.)(  The  body  of  rules 
thus  formed  becomes  so  large  that  only  a  few  men,  de- 
voting themselves  to  the  subject,  are  able  to  carry  the 
whole  in  their  memory.)  These  men,  proud  of  their 
knowledge,  elaborate  the  rules,  and  particularly  the  set 
forms  of  words,  still  further,  and  in  their  enjoyment  of 
technicalities, attach  more  and  more  importance  to  for- 
mal accuracy^  Thus  Custom,  which  was  loose  and  vague 
while  held  in  solution  in  the  minds  of  the  mass,  becomes 
crystallized  into  precision  by  the  labour  of  the  few  whose 
special  knowledge  gives  them  a  sort  of  pre-eminence, 
and  even  a  measure  of  powery  (Then  it  is  found  that 
there  are  diversities  of  opinion  among  the  cxpcrts")in  the 
law,  or  instances  arise  which  show  that  some  custom 


PRIMITIVE   ICELAND  283 

generally  accepted  is  inconvenient.  By  this  time  Cus- 
tom has  acquired  so  much  authority  that  the  assembly, 
which  has  been  also,  and  perhaps  primarily,  a  law  court, 
does  not  venture  to  transgress  it,  the  men  of  legal  learn- 
ing being  of  course  specially  opposed  to  such  a  course. 

(j.t  therefore  becomes  necessary  formally  to  change  the 
Custom  by  a  resolution  of  the  body  which  is  at  once  the 
Assembly  and  the  Court/  As  this  body  consists  of  those 
who  use,  and  whose  progenitors  have  created,  the  cus- 
tom^/and  as  it  continues  to  settle  other  matters  of  com- 
mon concern  affecting  the  districtfjt  is  the  proper  and 
only  body  to  make  the  change.) dTlus,  thesis  legislation 
in  its  early  stage.  J  The  law  produced,  which  wc  may  call 
Statute  Law,  is  for  many  generations  extremely  small 
in  proportion  to  the  mass  of  law  which  rests  upon  Cus- 
tom onlyT  ^j^)  the  Statute  Law  is  important  because 
it  is  explicit,  because  it  is  sure  to  be  remembered,  be- 
cause-iirTteals  with  points  comparatively  large,  since  it 
would  not  be  worth  while  to  submit  small  ones  to  the 
assembly.  Nevertheless  legislation  is  among  all  peoples 
the  smallest  part  of  the  work  of  primitive  assemblies, 
be  they  pings  or  Folk  Mots  or  Agorai  or  Comitia.  And 
the  growth  of  the  law  of  Iceland  by  custom,  preserved 
and  elaborated  by  a  succession  of  law-sages,  occasionally 
(though  rarely)  altered  or  added  to  by  the  vote  of  the 
Aljdng,  presents  a  lively  picture  of  what  must  have  been 
the  similar  process  of  the  construction  of  early  Roman 
law  by  the  jurists  (prudcntcs)  and  assembly  (comitia). 

Iceland,  however,  provided  a  means  for  the  ascertain- 
ment  and  publicity  of  her  law  which  Rome  lacked.    The 

^^g^OgumrT(Vr •  i ^  an  elegant  (using  the  word  in  its  strict 
Roman  sense)  complement  to  a  system  jjf  Customary 
Lg,\v.  His  function  was  well  designed  tonneet  Trrrd-cujg 
the^lAVO~cnTef  deTecf§\  in  such  a  system,  the  uncertainty 
which  existed  as  to  what  the  rules  accepted  as  law  were 
(ajK^he  ^fncuTty^which  an  individual  desiring  to  take  or 
defend  legal  proceedings  found  in  discovering  what  the 
rule  applicable  to  his  case  really  was.    The  solemn  reci- 


284  PRIM  I  ll\  i:   WELAUB 

tatiorh  of  the  whole  law  fixed  it  in  the  recollections  of 
those  who  busied  themselves  with  such  matters,  and 
gave  everybodyan_oj)p^jliu2i^vofJ<n^wing  what  it  co- 
ver^r"^T!iFTTgmt  o  interrogate~the  living  depositary  of 
the  law  as  to  any  special  point  whereanent  the  querist 
desired  to  be  informed  was  a  great  boon  to  private  per- 
sons, who,  since  they  might  often  have  to  suffer  from 
the  extreme  technicality  of  procedure,  needed  all  the 
more  to  be  warned  beforehand  where  the  pitfalls  lay. 
In  these  respects  the  Icelandic  system  contrasts  favour- 
ably with  those  of  early  Rome  and  early  England.  Till 
the  Twelve  Tables  were  enacted  the  private  citizen  of 
Rome  had  no  means  of  ascertaining  the  law  except  by 
asking  some  sage,  who  need  not  answer  unless  he 
pleased,  and  whose  view  had  no  authority  beyond  tliat 
which  his  personal  reputation  implied,  liven  after  the 
Twelve  Tables  had  reduced  much  of  the  ancient  Custo- 
mary Law  to  shape,  and  made  it  accessible  to  the  citi- 
zens at  large,  many  of  the  forms  of  procedure,  and  the 
rules  as  to  the  days  on  which  legal  proceedings  could  be 
taken,  were  kept  concealed  by  the  patrician  men  of  law 
till  divulged  (at  the  end  of  the  fourth  century  b.c.)  by 
Cn.  Flavius.  In  England  there  was  indeed  no  similar 
effort  to  keep  legal  knowledge  within  the  hands  of  a 
few.  But  the  customs  were  numerous,  and  many  of 
them  were  uncertain.  There  was  no  way  of  ascertain- 
ing them  except  by  the  judgement  of  a  Court,  a  tedious 
and  expensive  process,  which  after  all  decided  only  the 
particular  point  that  arose  in  the  case  that  occasioned 
the  judgement.  That  means  of  determining  a  custom 
to  be  valid  and  binding  which  the  Icelanders  had  already 
secured  through  their  official  in  the  last  half  of  the  tenth 
century  did  not  begin  to  be  created  by  the  action  of  the 
English  Courts  till  the  end  of  the  twelfth,  and  centuries 
were  needed  to  complete  the  process. 
(  One  of  the  things  that  most  awakens  our  surprise  in 
the  Icelandic  Constitution  is  its  extreme  complexity}  In 
one  sense  simple  and  even  rude,  since  it  omits  so  much 


PRIMITIVE  ICELAND  285 

we  should  have  expected  to  find  in  a  constitution,  it  is 
in  annfJTPj:  spimp  intricate,  and  puzzles  us  by  the  artificial 
character  of  the  arrangements  made  for  the  composition 
of  the  various__^olirTs~"ancI  of  the  legislativejbody,  while 
the  multiplicity  of  pings,  and  the  distribution  of  powers 
among  them,  has  given  rise  to  many  controversies 
among  historians,  some  still  unsettled.  This  pheno- 
menon, however,  finds  a  parallel  in  some  of  the  constitu- 
tions of  the  Greek  republics,  not  to  speak  of  the  elabo- 
rate systems  of  such  cities  as  Florence  and  Venice  in  the 
fourteenth  century.  (^  In  Iceland  the  s^rig..^ens£jQ£-uide- 
pendence  which  distinguished  the  Norsemen,  and  the 
jealousy  the  chiefs  had  of  one  another,  made  it  necessary 
to  devise  means  for^ectmng^eguality  and  for  preventing 
the  influence  of  any  group  or  district  from  attaining 
predominance.  ^Herein  the  spirit  of  the  Icelandic  Con- 
stitution issingularly  unlike  that  of  the  Roman. J  TheFe, 
the  intense  realization  of  the  unity~oTthejcity  and  the 
need  for  giving  its  government  the  maximum  of  con- 
centration against  neighbouring  enemies  caused  vast 
powers  to  be  entrusted  first  to  the  King  and  then  to  the 
Consuls  or  to  a  dictator.  In  Iceland,  where  no  such 
need  of  defence  existed,  where  there  was  no  foreign 
enemy,  and  men  jiyejjjicattered  injtiny  groups  round 
the  edges  of  a  vast  interior  desert,  no  executive  powers 
were  given_to_anybody,  and  elaborate  precautions  were 
taken  to  secure  the  rights  of  the  smaller  communities 
which  composed  the  Republic  and  of  the  priest-chieftains 
who  represented  them. 

A  like  intricate  character  recurs  in  the  system  of  legal 
procedure,  but  the  cause  is  different  and  not  peculiar  to 
Iceland.  The  excessive  technicality  of  Icelandic  pro- 
cess, and  the  stress  laid  upon  exact  compliance  with  its 
rules,  belong  to  that  stage  of  the  human  mind  in  which 
form  and  matter  have  not  yet  been  separated,  and  in 
which  the  respect  for  usage  and  tradition  outweighs  the 
sense  of  substantial  justice.  Simplicity  in  legal  matters, 
instead  of  characterizing  the  state  of  nature,  is  the  latest 


V 


286  PRIMITIVE  ICELAND 

legal  achievement  of  a  civilized  age.  In  accounting  for 
the  strictness  of  adherence  to  the  letter,  we  must  allow 
something  for  the  dread,  natural  enough  in  such  an  age, 
that  if  deviations  from  the  letter  of  the  law  were  over- 
looked/if  what  we  should  call  a  power  of  amendment  on 
matters  of  form  were  entrusted  to  the  Court,  such  dis- 
cretion would  be  abused  and  confidence  in  the  Courts 
destroyed.)  But  the  reason  is.  chiefly  to  be_  found,,  as  in 
the  parallel  case  of  those  older  forms  of  Roman  proce- 
dure which  continued  terribly  technical  till  the  time  of 
Cicero,  and  as  in  the  case  of  our  own  older  law,  to  the 
conservative  spirit  of  the  lawyers,  attached  to  the  forms 
they  had  received  and  studied,  and  taking  a  professional 
pride  in  working  out  their  methods, a  pride  all  the  greater 
the  more  technical  those  methods  were,  because  the 
more  intricate  the  technicalities  the  higher  the  impor- 
tance of  the  few  who  had  mastered  them.  Substantial 
justice  is  all  the  layman  cares  for.  With  the  lawyer  it 
is  otherwise.  An  eminent  English  judge  used  to  remark 
that  of  the  questions  argued  before  him,  counsel  showed 
most  interest  in  points  of  practice,  costs  came  next, 
while  the  merits  of  the  case  were  last.  The  late  Baron 
Parke  (Lord  Wensleydale)  was  a  type  of  the  kind  of 
mind  which  flourished  in  Iceland  in  the  eleventh  cen- 
tury;  and  it  was  a  type  useful  in  its  way,  a  type  which 
ought  always  to  be  represented  in  the  legal  profession, 
•  for  reverence  for  tradition  and  an  acute  interest  in  the 
exactitude  of  form  are  hardly  less  necessary  than  a  philo- 
sophic spirit  and  a  zeal  for  progress. 

How  keen  was  the  taste  [or  legal  subtleties  and  in- 
tricacies is  shown,(not  only  by  the  existence  of  schools 
of  law  in  Iceland — young  men  gathering  round  sages 
like  Xjal  or  Skapti  Thoroddsson,  just  as  the  well-born 
youth  of  Rome  frequented  the  house  of  Tib.  Corun,- 
canius  or  Q.  Mucins  Scaevola — knit  also  by  the  evident 
enjoyment  which  the  authors  of  the  Sagas  show,  and 
which  their  public  must  evidently  have  taken,  in  the  steps 
in  a  lawsuit,  or  in  the  telling  of  some  incident  which 


PRIMITIVE  ICELAXD  2R7 

raises  a  nice  point  of  procedure.    In  no  other  literature    f 
is  fiction  or  history,  by  whichever  name  we  describe  the 
Sagas,  so  permeated  by  legal  lore. 

Our  knowledge  of  the  substance  of  early  Icelandic 
law  is  derived  partly  from  references  or  allusions  in  the 
Sagas,  partly  from  some  ancient  law-books,  the  oldest  of 
which  belongs  to  the  period  of  the  Republic,  and  was 
compiled,  probably  about  the  middle  of  the  twelfth  cen- 
tury, out  of  materials  some  of  them  much  older,  and 
reaching  back  into  the  eleventh  and  even  the  tenth.    Sta-x 
tutes  had  been  passed  during  the  course  of  the  tenth  cen-  \ 
tury,  and  the  Ulfljotslqg  of__A.p.  930  is  spoken  of  as  a  I 
body  of  law  prepared  by  Ulfljot  after  his  journey  to  Nor-  J 
way  and  accepted  by  the  Aljung,  though  it  was  probably  I 
a  redaction  of  existing  Norse  customs,  and  does  not  • 
seem  to  have  been  reduced  to  writing,  as  indeed  it  is    r 
improbable  that  any  laws  were  written  before  the  be- 
ginning of  the_Jwdith_century.    The  nejttJLffort  at  wFat     7 
has  been  called  a  codification  of  the  law  was  made  nearly      | 
two  centuries  atter  Olhiot  (about  ^.d.  1117),  when  a      * 
small  commission  was  appointed  which  examined  the 
customs,  rejected  some,  approved  or  amended  others,      4 
and  created  what  is  described  as  a  sort  of  systematic  col-      f 
lection.    This  is  usually  known  as  the  HafliSaskra,  from 
a  prominent  GoSi  and  lawyer  HafliSi  Marsson,  who  was     > 
a  member  of  the  commission.    This  law  is  stated  to  have    " 
been  accepted  by  the  Aljung,  and  was  no  doubt  pre- 
served in  writing,  as  the  name  Skra  (scroll)  conveys. 

The  later  book  which  used  to  be  described  as  a  Code 
survives  in  two  MSS.,  differing  a  good  deal  from  one 
another,  and  is  commonly  known  as  Gragas  ('  Grey- 
Goose  ') 1.  It  is,  however,  really  not  a  Code  at  all,  and 
not  even  a  single  law-book,  but  a  mass  of  matter  of 
different  dates  and  origins  never  reduced  to  any  sort  of 

1  The  name  Grdgds  (probably  drawn  from  the  binding  in  which  a  copy  of  it 
was  preserved)  seems  to  have  originally  belonged  to  a  MS.  of  the  Frostabingslog, 
the  law  which  prevailed  round  Throndhjem  in  Norway,  and  to  have  been  applied 
by  mistake  in  the  seventeenth  century  to  this  Icelandic  collection  of  customs,  first 
published  by  the  Arnamagnaean  foundation  in  1829. 


288  PRIMITIVE  ICELAND 

unity.  There  are  ordinances  of  the  AlJ>ing,  decisions 
and  declarations  delivered  by  Law-Speakers,  ecclesiasti- 
cal regulations,  formulas  of  legal  procedure  or  legal 
transactions,  memoranda  of  customs  which  seemed  to 
those  who  recorded  them  to  have  obtained  recognition 
and  validity.  It  is  full  of  instruction  as  a  picture  of 
primitive  Teutonic  institutions  and  life;  and  it  throws 
a  good  deal  of  light  both  on  the  law  of  early  England — 
English  and  Anglo-Norman — and  upon  some  of  the 
most  curious  features  of  early  Roman  law.  Sometimes 
the  references  to  the  deliverances  of  a  Law-Speaker  as 
originating  a  rule  make  us  think  of  the  Roman  Praetor, 
sometimes  the  concisely  phrased  records  of  what  was 
settled  by  the  Logretta  remind  us  of  our  English  reports 
of  the  judgements  of  the  King's  Courts  in  their  early 
forms ;  while  in  one  point  the  collection  as  a  whole  has 
a  character  which  belongs  to  the  earlier  law-books  as 
well  of  Rome  as  of  England.  Though  the  statutes  of 
the  Alj'ing  are  the  most  distinctly  authoritative  rules  it 
contains,  much  whose  authority  would  seem  doubtful 
to  a  modern  is  set  down  in  a  way  which  clearly  implies 
that  it  did  possess  authority.  The  line  between  abso- 
lutely binding  law  and  all  other  law  is  not  sharply  drawn  ; 
indeed  no  such  line  exists.  That  which  is  recorded  may 
be  only  a  single  instance  of  the  observance  of  an  alleged 
custom.  It  may  be  only  the  expression  of  the  individual 
opinion  of  some  learned  logmaSr  (Lawman  =  jurist). 
Nevertheless  it  is  a  record  which  has  come  down  from 
the  past,  and  by  which  therefore  the  men  of  the  present 
may  seek  to  be  guided. 

In  the  law  of  Iceland,  as  it  is  presented  in  this  ancient 
collection,  we  have,  as  in  the  Constitution  of  the  island 
and  the  system  of  the  Courts,  a  striking  contrast  be- 
tween the  rudeness  of  an  extremely  archaic  society,  in 
which  private  war  is  constantly  going  on,  piracy  is  an 
honourable  occupation,  slavery  exists,  and  there  is  no 
State  administration  and  very  little  use  of  writing,  and 
the  refined  intricacy  of  a  system  of  law  which  makes 


PRIMITIVE  ICELAND  289 

elaborate  provision  for  the  definition  of  legal  rights  and 
their  investigation  and  determination  by  legal  process. 
The  time  of  day  is  fixed  by  guessing  at  the  height  of 
the  sun  above  the  horizon.  The  wife  is  purchased.  A 
father  may  deliver  his  child  into  slavery,  no  doubt  (as  in 
early  Rome),  a  qualified  slavery,  for  the  payment  of  his 
debts,  and  the  insolvent  debtor  may  be  made  a  slave. 
iBu^/on  the  other  hand,  there  are  rules,  not  unlike  those 
or  our  modern  Courts  of  Equity,  regulating  the  guar- 
dianship of  the  property  of  a  minor,  and  permitting  a 
portion  of  it  to  be  applied  to  the  support  of  his  indigent 
father,  brother  or  sister  l.  There  are  careful  distinctions 
as  to  who  may  sue  for  the  penalty  for  homicide.  If  the 
slain  man  is  an  Icelander,  the  action  goes  first  to  the  son, 
then  to  the  nearest  blood  relation,  then  to  the  local  GoSi, 
then  to  any  member  of  the  same  Quarter,  then  to  any 
citizen  (a  sort  of  actio  popular  is).  If  the  slain  man  was 
not  an  Icelander,  but  one  who  used  the  '  Danish  (or 
northern)  tongue,'  i.e.  if  he  was  either  a  Norseman  or 
a  Dane  or  a  Swede,  then  any  relative  may  sue ;  if  a 
stranger  of  any  other  nationality,  only  a  father,  son  or 
brother  may  sue.  But  for  the  protection  of  persons  I 
coming  in  a  ship,  the  comrade  or  partner  2  of  the  de-  | 
ceased,  whom  failing,  the  skipper  who  has  the  largest 
share  in  the  ship,  is  a  proper  plaintiff. 

It  is  curious  to  note  that,  although  homicide  and  mur- 
der were  common,  the  punishment  of  death  is  never 
prescribed,  even  as  in  two  or  three  of  the  Southern 
States  of  America  the  death  penalty  is  seldom  inflicted, 
while  '  shootings  at  sight '  and  lynchings  abound.  And 
an  interesting  resemblance  to  early  Roman  law  may  be 
found  in  the  extreme  severity  of  the  law  of  slander  and 
libel.  The  truth  of  a  defamatory  statement  is  no  defence. 
To  affix  a  nickname  to  a  man  is  punishable  by  banish- 

1  This  rule  is  ascribed  to  GuSmund  Thorgeirsson,  who  was  Law-Speaker  from 
1123  to  1135  a.  u. 

1  Partner  is  felagi  (English  'fellow')-     Many  further  rules  on  this  point  are 
contained  in  the  passage,  Griigas,  chap,  xxxvii  (vol.  ii.  pp.  71-73  of  the  Arna- 
magnaean  edition). 
19 


290  PRIMITIVE   ICELAND 

ment.  No  verses  are  to  be  made  on  a  man,  even  in  his 
praise,  without  his  leave  first  obtained ;  and  one  who 
teaches  or  repeats  the  verses  made  by  another  incurs  an 
equal  penalty,  the  remedy  extending  even  to  verses  made 
against  the  memory  of  the  dead.  A  love  poem  addressed 
to  a  woman  is  actionable,  the  action  being  brought  by 
her  guardian  if  she  is  under  twenty  years  of  age  l. 

Of  the  ramifications  of  the  system  of  procedure  into 
all  sorts  of  Courts,  besides  the  regular  pings,  I  have  no 
space  to  speak ;  but  one  singular  illustration  of  the  faith 
\  which  the  Icelanders  had  in  the  efficacy  of  legal  remedies 
deserves  to  be  given,  because  in  it  these  remedies  reach 
beyond  the  present  life.  It  comes  from  the  Eyrbyggja 
Saga,  one  of  the  most  striking  of  the  old  tales. 

A  chief  named  Thorodd,  living  at  Fro  a  in  BreiSifjorS, 
on  the  west  side  of  Iceland,  had  just  before  Yule-tide 
been  wrecked  and  drowned  with  his  boat-companions  in 
the  fjord.  The  boat  was  washed  ashore,  but  the  bodies 
were  not  recovered.  Thereupon  his  wife  ThuriC  and 
his  eldest  son  Kjartan  bade  the  neighbours  to  the  fune- 
ral feast ;  but  on  the  first  night  of  the  feast,  as  soon  as  the 
fire  was  lighted  in  the  hall,  Thorodd  and  his  companions 
entered,  dripping  wet,  and  took  their  seats  round  it. 
The  guests  welcomed  them  :  it  was  held  that  those  would 
fare  well  with  Ran  (the  goddess  of  the  deep  sea)  who 
attended  their  own  funeral  banquet.  The  ghosts,  how- 
ever, refused  to  acknowledge  any  greetings,  and  re- 
mained seated  in  silence  till  the  fire  had  burnt  out,  when 
they  rose  and  left.  Next  night  they  returned  at  the  same 
time  and  behaved  in  the  same  way,  and  did  so,  not  ojily 
every  night  while  the  feast  lasted,  but  even  afterwards. 
The  servants  at  last  refused  to  enter  the  fire-hall,  and  no 
cooking  could  be  done,  for  when  a  fire  was  lit  in  another 
room,  Thorodd  and  his  companions  went  there  instead. 
At  last  Kjartan  had  a  second  fire  lit  in  the  hall,  leaving 
the  big  one  to  the  ghosts,  so  the  cooking  could  now  be 

1  See  Grdpas,  chaps,  civ-cviii,  pp.  143-156  of  vol.  ii.  in  the  Arnarnapnaean  edi- 
tion. 


PRIMITIVE   ICELAND  201 

done.  But  men  died  in  the  house,  and  ThuriS  herself 
fell  ill,  so  Kjartan  sought  counsel  of  his  uncle  Snorri,  an 
eminent  lawyer  and  the  leading  Go5i  of  Western  Ice- 
land. By  Snorri's  advice  Kjartan  and  seven  others  with 
him  went  to  the  hall  door  and  formally  summoned  Tho- 
rodd  and  his  companions  for  trespassing  within  the 
house  and  causing  men's  deaths.  Then  they  named  a 
Door-Court  (Dyradomr)  and  set  forth  the  suits,  follow- 
ing all  the  regular  procedure  as  at  a  ping-Court.  Ver- 
dicts were  delivered,  the  cases  summed  up  and  judge- 
ment given;  and  when  the  judgement  word  was  given  on 
each  ghost,  each  rose  and  quitted  the  hall,  and  was  never 
seen  thereafter. 

Ghosts  have  given  much  trouble  in  many  countries, 
but  it  is  only  the  Icelanders  who  have  dealt  with  them 
by  an  action  of  ejectment. 

(Although  it  is  a  remarkable  evidence  of  the  political 
genius  of  the  Norsemen  that  they  should  have  been  able 
to  work  at  all  a  legal  system  such  as  has  been  described, 
it  need  hardly  be  said  that  it  did  not  work  smoothly. 
The  Icelanders  were  a  people  of  warriors,  little  accus- 
tomed to  restrain  their  passions,  and  holding  revenge 
for  a  sacred  duty]  'The  maintenance  of  order  at  the 
Alj'ing  was  entrusted  to  the  Go5i  of  the  spot,  and  it  was 
strictly  forbidden  to  wear  arms  while  the  meeting  lasted. 
The  closing  of  the  Aiding  was  called  Vapnatak  (weapon- 
taking,  wapentake),  because  the  arms  that  had  been  laid 
aside  were  taken  when  men  started  to  ride  home  from 
the  p'mgff  But  the  arms  were  after  all  only  left  in  the 
booth,  and  more  than  once  it  happened  that  the  party 
which  found  itself  unsuccessful  in  a  lawsuit  seized  sword 
and  spear  and  fought  out  the  issue  in  a  bloody  battle. 
from  which  sprang  again  new  blood-feuds  and  new  law- 
suitsJ/  It  is  not  very  often  that  the  Sagas  give  us  a 
glimpse  of  the  conduct  of  business  at  the  Alj'ing ;  but 
one  such  lawsuit,  followed  by  a  combat,  which  arose 
when  the  suit  broke  down  on  a  technical  point,  is  de- 
scribed with  wonderful  force  and  spirit  in  the  famous 


292  PRIMITIVE  WELA  M> 

Sagaj^fJ^jj^Thorgcirsson,  a  masterpiece  of  literature 
in  the  freshness  and  brilliance  of  its  narrative. 
uAVe  hear  occasionally  of  the  passing  of  particular  laws 
at  an  AlJ'ing.  In  a.d.  994,  for  instance,  it  was  enacted 
that  the  suit  for  compensation  for  homicide  which  was 
brought,  according  to  the  general  practice  of  the  north- 
ern nations,  by  and  for  the  benefit  of  the  nearest  relatives 
of  the  slain,  a  right  which  has  survived  in  the  law  of 
Scotland  under  the  name  of  Assythment,  and  has  been 
partially  introduced  into  the  law  of  England  by  the  Act 
9  &  10  Vict.  c.  93  (commonly  called  Lord  Campbell's 
Act),  should  in  future  not  be  brought  by  a  woman  or  by 
a  child  under  sixteen  years  of  age,  but  by  the  nearest 
male  relative.  This  provision  was  suggested  by  a  case 
that  had  occurred  just  before,  when  inadequate  compen- 
sation had  been  recovered  for  the  slaughter  of  a  chief- 
tain named  Arnkel,  owing  to  the  mismanagement  of  the 
suit  by  his  widow.  Again,  in  a.d.  1006  we  are  told  of 
the  abolition  of  the  judicial  combat  on  the  occasion  of 
an  indecisive  duel  between  the  poet  and  Viking  Gunn- 
laug  Ormstunga  (Snake's  tongue  *)  and  another  poet 
named  Hrafn,  the  details  of  which  are  recorded  in  one 
of  the  most  beautiful  and  touching  of  the  early  Sagas. 
Gunnlaug  had  been  betrothed  to  Helga  the  Fair,  one  of 
the  most  famous  heroines  of  Icelandic  story,  but  having 
been  detained  in  England  by  King  Ethelred  II,  whose 
guest  he  had  previously  been  in  London  2  and  whose 
praises  he  had  been  celebrating  in  verse,  had  failed  to 
return  at  the  appointed  time,  and  found  Helga,  who  had 
yielded  to  the  importunities  of  her  relatives,  already 
married  to  Hrafn.  According  to  the  custom  of  the 
North,  which  then  allowed  any  man  to  require  another 
leither  to  give  up  his  wife  and  all  his  property  or  defend 
'her  and  it  by  arms,  Gunnlaug  came  to  the  AlJ'ing  and 

'  So  called  from  liis  satirical  powers. 

a  The  Saga  says  (Gunnlaugs  Saga  Ormstungu,  chap,  vii)  that  in  the  days  of 
Ethelred  son  of  Edgar  (A'SalruSr  Jatgcirsson)  the  same  tongue  was  spoken  in 
England  and  Denmark  as  in  Norway,  and  that  this  continued  in  England  till  Will- 
iam the  Bastard  won  England,  after  vhorn  Welsh  (Valslt  —  Fren<  h)  was  ipokeq. 


( 


PRIMITIVE  ICELAND  293 

formally  challenged  Hrafn,  and  they  fought,  each  with 
his  second,  a  solemn  duel  on  the  island  in  the  Oxara 
which  was  set  apart  for  that  purpose.  A  dispute  arose 
after  the  first  encounter,  and  the  combatants  were  sepa- 
rated. Gunnlaug  wished  to  resume  the  combat,  but  the 
law  already  referred  to,  prohibiting  formal  duels  in  fu- 
ture, was  passed  next  day  by  the  Logretta ;  and  he  un- 
willingly obeyed,  for  a  breach  of  it  would  have  exposed 
him  to  the  penalties  of  outlawry.  Helga,  however,  re- 
fused to  live  any  longer  with  her  husband  Hrafn,  and 
next  year  the  two  rivals  sailed  by  agreement  to  Norway, 
just  as,  fifty  years  ago,  persons  fearing  to  fight  a  duel 
in  England  used  to  cross  to  Calais  for  the  purpose. 
Years  passed  before  they  met  in  the  wild  country  east 
of  Throndhjem.  There  they  fought  out  their  quarrel. 
Gunnlaug  smote  off  his  enemy's  foot,  and  then  proposed 
to  stop  the  combat.  Hrafn  however,  supporting  him- 
self against  a  tree,  wished  to  fight  on,  but  as  he  was 
tortured  by  thirst,  he  besought  his  opponent  to  fetch  him 
a  draught  of  water  from  a  brook  hard  by,  promising  not 
to  deceive  him.  The  chivalric  Gunnlaug  brought  the 
water  in  his  helmet,  whereupon  Hrafn,  taking  the  water 
with  his  left  hand,  suddenly  raised  his  sword  and,  with 
all  his  remaining  strength,  smote  Gunnlaug  on  his  bared 
head.  '  Thou  hast  done  ill  and  deceived  me,'  said  Gunn- 
laug, '  seeing  that  I  trusted  you.'  '  So  is  that,'  answered 
Hrafn,  '  but  I  grudged  thee  the  love  of  Helga  the  Fair.' 
Then  they  fought  on.  Hrafn  was  slain,  and  in  a  few 
hours  Gunnlaug  died  of  his  wounds1.  The  news  was 
brought  to  Iceland,  and  after  a  time  Helga,  thinking 
ever  of  Gunnlaug,  and  often  spreading  out  upon  her 
knees  a  garment  which  Gunnlaug  had  given  to  her,  pined 
away  and  died  likewise. 
y  Another  striking  scene  at  the  Alfing  has  been  pre- 

1  The  Saga  adds  that  very  shortly  after  the  combat,  and  long-  before  the  news 
of  it  could  have  reached  Iceland,  the  ghosts  both  of  Gunnlaug  and  of  Hrafn  ap- 
peared in  dreams  to  their  respective  fathers  in  Iceland,  and  recited  poems  describ- 
ing their  deaths.  Illugi  the  Black,  Gunnlaug's  father,  remembered  the  poem  h". 
heard  and  repeated  it  aloud  next  day.  The  Saga  gives  both  poems.  This  is  one 
of  the  earliest  Teutonic  instances  of  a  death-apparition. 


294  PRIMITIVE   ICELAND 

served  to  us  in  the  Saga  which  relates  the  introduction 
of  Christianity,  j  King  Olaf  Tryggvason,  the  most  bril- 
liant of  all  the  Norwegian  sovereigns,  who,  having  been 
himself  converted  some  ten  years  before,  was  hard  at 
work  converting  the  stubborn  Norwegians  by  burning 
their  houses  and  torturing  themselves,  had  sent  two 
missionaries  to  Iceland,  one  of  whom,  the  priest  Thang- 
brand,  had  been  obliged  to  leave  Norway  on  account  of 
his  violent  life,  and  who  signalized  himself  in  Iceland  by 
committing  two  murders  in  the  course  of  his  five 
months'  stay,  which  was  then  summarily  shortened. 
The  unworthiness  of  the  minister,  however,  does  not 
seem  to  have  injured  the  cause  he  championed.  Several 
men  of  note  embraced  the  new  faith,  which  was  of  course 
well  known  to  the  Icelanders  from  their  intercourse  with 
Ireland  and  Britain,  and  had  the  promise  of  the  future 
to  recommend  it.  These  men,  and  also  some  heathen 
chieftains  who  thought  that  acceptance  was  the  best  way 
of  avoiding  civil  war,  supported  the  envoys  of  Olaf, 
when,  at  the  Al]>ing  of  the  year  iooo,  they  urged  upon 
the  assembly  to  decree  the  abolition  of  paganism.  A 
story  goes  that,  while  the  debate  was  at  its  height,  a 
messenger  arrived  to  tell  that  a  volcano  had  broken  out 
thirty  miles  to  the  south,  and  was  pouring  a  flood  of  lava 
over  the  pastures.  The  heathen  party  accepted  the  news 
as  an  omen,  and  exclaimed,  '  This  is  the  wrath  of  the 
gods  at  these  new  rites ;  see  what  you  have  to  expect 
from  their  anger !  '  '  With  whom,  then,'  said  Snorri,  a 
leading  GoSi  who  had  not  yet  declared  himself,  '  with 
whom  were  the  gods  angry  when  this  rock  was  molten 
on  which  we  stand? '  (pointing  to  the  deep  lava  rifts  that 
lay  around  the  L6gbcrg).(  By  the  interposition  of  the 
Law-Speaker  Thorgeir,  that  which  he  described  as  a 
compromise,  but  which  was  in  reality  a  surrender  by  the 
heathen  party,  was  at  the  same  Aiding  accepted.  \  The 
people  were  to  be  baptized  and  declare  themselves  Chris- 
tians, and  the  temples  and  images  of  the  old  gods  were 
to  be  destroyed ;  but  those  who  liked  to  sacrifice  at  home 


PRIMITIVE  ICELAND  295 

might  continue  to  do  so;  and  two  heathen  customs,  the 
exposure  of  new-born  infants  and  the  eating  of  horse- 
flesh, were  to  be  permitted.  Some  difficulty  arose  over 
the  reluctance  of  those  who  came  from  the  North  and 
East  Quarters  of  the  island  to  submit  to  immersion  in 
cold  water ;  but  this  difficulty  was  happily  overcome  by 
the  use  of  the  hot  springs  at  Reykir  for  the  rite. 

The  century  and  a  half  that  followed  the  introduction 
of  Christianity  was  the  most  brilliant  period  in  the  his- 
tory of  the  island.  It  was  not  indeed  a  time  of  peace, 
for  the  old  passions  and  the  old  superstitions  were  but 
little  altered.  Slayings  and  burnings  of  houses  with 
their  inmates  went  on  pretty  much  as  before.  But  there 
was  now  added  to  the  stimulus  which  their  free  republi- 
can life  and  their  piratical  expeditions  gave  to  the  na- 
tional spirit  the  influence  of  the  learning  and  ideas  which 
came  in  the  train  of  the  new  faith.  The  use  of  writing 
soon  spread,  and  the  magnificent  Sagas,  which  are 
among  the  noblest  monuments  of  Northern  genius,  were 
nearly  all  of  them  produced  in  this  age,  though  some 
were  not  committed  to  parchment  before  the  end  of  the 
twelfth  century. 

(  For  many  years  the  Constitution  of  the  Republic 
seems  to  have  undergone  no  great  alteration.  The 
establishment  of  Christianity  did  indeed  throw  consider- 
able power  into  the  hands  of  the  two  bishops, and  eventu- 
ally produced  a  strife  between  the  Church  and  the  tem- 
poral magnates  resembling  that  which  distracted  both 
the  Romano-Germanic  Empire  and  England.]  This 
scarcely  affected  the  position  of  the  Go5i,  whose  autho- 
rity had  now  lost  so  much  as  it  originally  possessed  of  a 
religious  character.  Snorri,  whose  appeal  to  geology  is 
said  to  have  decided  the  Aiding  against  paganism,  was 
himself  the  priest  of  the  most  famous  heathen  sanctuary 
of  the  island/  But  in  the  beginning  of  the  thirteenth 
century  the  aelicately-framed  fabric  of  the  Republican 
Constitution  began  to  break  upAlThe  tendency  of  a  fede- 
ration usually  is  to  become  less  of  a  federation  and  more 


296  PR1MITH  i:  ICELAND 

of  a  single  united  stated  But  in  Iceland  the  federal  bond, 
if  one  can  use  this  name,  was  always  weak,  and  when  a 
powerful  member  became  disobedient,  there  were  no 
legal  means  of  reducing  him  to  submission.  By  degrees 
the  number  of  priest-chieftainships  diminished,  the 
GociorMs,  which  passed  not  only  by  inheritance  but  also 
by  gift  or  sale,  coming  to  be  accumulated  in  the  hands  of 
a  few  great  families,  who  thus  acquired  a  predominant  in- 
fluence at  the  Al]>ing,  were  virtually  masters  of  large  dis- 
tricts of  the  country,  and  marched  about  like  feudal  lords 
attended  by  petty  armies.  Thus  the  old  blood-feuds  as- 
sumed more  and  more  the  aspect  of  civil  wars.  Piracy 
was  now  less  practised,  because  the  countries  which  had 
formerly  been  ravaged  were  better  prepared  for  defence, 
so  the  energy  that  used  to  spend  itself  upon  the  coasts  of 
Scotland  and  Ireland,  of  North  Germany  and  Gaul,  was 
now  turned  inward,  and  with  fatal  results. 

I  am  not  writing  the  history  of  Iceland,  though  indeed 
I  wish  I  were  doing  so,  for  the  theme  is  a  fascinating 
one.  But  before  closing  these  scattered  observations, 
intended  to  stimulate  rather  than  to  satisfy  curiosity,  I 
will  add  three  remarks  suggested  by  the  sketch  that  has 
been  given. 

Th^iTrp)  remark  is  that  Iceland  presents  one  of  the 
lew  instances  in  history  of  a  breach~7n  the  continuity 
of  institutional  development  The  settlers  were^all  of 
Iftlorse  stock;  and  JNorway  had  in  its  petty  communities  a 
rudimentary  system  of  institutions  not  unlike  that  de- 
scribed by  Tacitus  in  his  account  of  Germany,  or  that 
which  the  conquering  Angles  and  Saxons  brought  to 
Britain.  Each  community  was  an  independent  Fylki 
(folk).  In  each  Fylki  there  was  a  number  of  nobles,  one 
of  whom  stood  foremost  as  hereditary  chieftain,  and  a 
body  of  warlike  freemen,  as  well  as  a  certain  number  of 
slaves.  In  each  there  was  a  popular  assembly,  the  ping, 
corresponding  to  our  Saxon  Folk  Mot.  Now  owing  to 
the  way  in  which  the  settlers  had  planted  themselves 
along  the  coasts  of  Iceland,  and  to  the  fact  that  they 


PRIMITIVE  ICELAND  297 

were  less  closely  aggregated  there  than  men  had  been 
in  Norway,  this  organization  did  not  reappear  in  the 
new  land.  There  was  indeed  everywhere  a  ping,  for  the 
habit  of  meeting  to  deal  with  lawsuits  and  other  mat- 
ters of  common  interest  was  cherished  as  the  very  foun- 
dation of  society.  But  an  Icelandic  community  was  not 
a  Fylki.  It  was  not  an  old  natural  growth,  but  rather  a 
group  of  families  whose  tie  was  at  first  only  that  of  local 
proximity  and  thereafter  that  also  of  worship  at  a  com- 
mon temple.  The  GoSi,  though  he  became  the  centre 
of  this  group,  was  not  a  chieftain  with  a  hereditary  claim 
to  leadership,  and  was  not  necessarily  of  any  higher 
lineage  than  some  of  his  pingmen.  Such  eminent  and 
high-born  men  as  Njal  for  instance  and  Egil  Skalla- 
grimsson  were  not  GoSis.  The  GoSorS  was  really  a 
new  institution,  due  to  the  special  circumstances  of  Ice- 
land, and  apparently  without  precedent  among  the  Teu- 
tonic races.  Still  more  plainly  was  the  organization  of 
the  Republic  with  its  scheme  of  Courts  and  its  Logretta 
a  new  creation,  due  to  the  wisdom  and  public  spirit  of 
the  leading  men  of  the  nation,  and  not  a  purely  natural 
growth. 

Secondly,  as  the  Icelandic  Republic  is  a  new  form  of 
political  society,  so  the  Aiding,  in  which  the  unity  of 
the  Republic  found  visible  expression,  is  a  unique  body, 
which  cannot  be  referred  to  any  one  of  the  familiar  types 
of  assembly.  It  is  not  a  PrimaryAssembly,  for  though 
all  freemen  are  present,  only  a  limited  number  of  persons 
are  entitled  to  exercise  either  judicial  or  legislative  func- 
tions. Neither  is  it  a  Representative  Assembly,  for  no 
one  was  elected  to  sit  in  it  as  a  delegate  from  others. 
The  GoSis  sat  each  by  his  own  right,  and  the  other  mem- 
bers as  nominees  of  the  GoSis.  Neither.again  is_it  a  sort 
of  King's  Council,  like  the  Curia  Regis  of  mediaeval 
England,  consisting  of  magnates  and  official  advisers 
summoned  by  a  monarch.  If  parallels  to  it  are  to  be 
sought,  they  are  to  be  sought  rather  in  bodies  such  as 
the  Roman  Senate  may  have  been  in  its  earlier  form,  a 


298  PRIMITIVE  ICELAND 

sort  of  council  of  the  heads  of  organized  communities ; 
yef)  the  differences  between  the  Roman  rentes  and  the 
Icelandic  pingmen,  and  the  absence  of  an  executive 
magistrate  like  the  Roman  king,  make  the  parallel  any- 
thing but  close.  Still  more  remote  is  the  resemblance 
which  the  Alju'ng  might  be  deemed  to  bear  to  the  coun- 
cil of  a  league,  such  as  was  the  Swiss  Confederation  be- 
fore 1799,  or  such  as  the  Diet  of  the  Romano-Germanic 
Empire  in  its  later  days. 

The  comparison  of  Iceland  to  a  federation  suggests 
a  third  question.  Why  did  not  the  Republic  develop  into 
a  united  State,  whether  republican  or  monarchical,  as  did 
most  of  the  nations  of  mediaeval  Europe  ? 

Out  of  several  reasons  that  might  be  assigned  I  will 
mention  three  only,  two'  of  them  political,  the  third 
physical. 

In  Iceland  there  was  no  single  great  family  with  any 
hereditary  claim  to  stand  above  the  others,  while  all 
the  leading  families  were  animated  by  a  high  sense  of 
pride  and  a  pervading  sentiment  of  equality.  Thisjoye 
of  equality  remains  among  the  sons  of  the  old  Norse- 
men both  in  Iceland  and  in  Norway,  and  is  indeed 
stronger  there  than  anywhere  else  in  Europe. 

Iceland  llad  not,  and  could  not  have,  any  foreign  wars. 
There  was  therefore  no  external  strife  to  consolidate 
her  people,  no  opportunity  for  any  leader  to  win  glory 
against  an  enemy,  or  to  create  an  army  on  which  to  base 
his  power.  All  the  wars  were  civil  wars,  and  tended  to 
disunion. 

The^  third  reason  is  to  be  found  in  the  nature  of  the 
country.  The  island,  larger  than  Ireland,  has  practically 
no  land  fit  for  tillage,  and  very  little  fit  even  for  pasture. 
Neither  has  it  any  internal  trade.  The  interior  is  occu- 
pied by  snow  mountains  and  glaciers  and  lava-fields  and 
wastes  of  black  volcanic  sand  or  pebbles.  Iceland  is 
really  one  huge  desert  with  some  habitable  spots  scat- 
tered along  its  coasts.  It  was  the  Desex±jJhaJ^iiiQ£t__of 
all  destroyed  the  chances  of  political  unity  under  a  re- 


3 


PRIMITIVE  ICELAND  299 

public  by  dividing  the  people  into  numerous  small 
groups,  far  removed  from  one  another,  and  in  many 
places  severed  by  rugged  and  barren  wastes,  or  by  tor- 
rents difficult  to  cross. 

C  Nevertheless,  although  the  Republic  was  evidently 
destined  to  perish,  it  is  possible  that  had  Iceland  been 
left  to  herself  the  rivalry  of  the  two  or  three  great  fac- 
tions which  divided  it,  and  were  usually  in  arms  against 
one  another,  would  have  ended  in  the  triumph  of  one 
of  them,  and  in  the  establishment  of  a  monarchy,  or  (less 
probably)  of  several  independent  rival  principalities. 
But  a  new  and  more  formidable  figure  now  appeared  on 
the  scene.)  The  successors  of  King  Harald  the  Fair-  r. 
haired  had  always  held  that  the  Icelanders,  since  their 
ancestors  had  come  from  Norway,  ought  to  own- their 
supremacy1,  and  they  argued  that  as  monarchical  gov- 
ernment was  divinely  appointed,  and  prevailed  every- 
where in  Continental  Europe,  no  republic  had  a  right 
to  exist.  -King  Hakon  Hakonsson  (Hakon  IV),  one  of 
the  greatest  among  the  kings  of  Norway,  now  founcLin 
the  distracted  state  of  the  island  a  better  opportunity 
of  carrying  out  the  plans  which  his  predecessors  Olaf 
Tryggvason  and  Olaf  the  Saint  had  been  obliged,  by  the 
watchfulness  of  the  Al]>ing,  to  abandon.  fBy  bribes  and 
by  threats,  by  drawing  the  leading  Icelanders  to  his 
Court,  and  sending  his  own  emissaries  through  the 
island,  he  succeeded  in  gaining  over  the  few  chiefs  who 
now  practically  controlled  the  Aiding,  and  at  the  meeting 
of  midsummer,  a.d.  1262  Jone  year  before  the  battle  of 
Largs,  which  saved  Scotland  from  the  invasion  of  this 
very  Hakon),  the  Southern,  Western  and  Northern 
Quarters  accepted  the  King  of  Norway  as  their  sove- 
reign, while  in  1264  (the  year  of  the  summoning  of  the 
first  representative  Parliament  of  England  by  Earl 
Simon  de  Montfort)  the  remaining  districts  which  had 

1  This  claim  of  a  Crown  to  the  allegiance  of  emigrants  who  had  passed  into 
new  lands  reminds  one  of  that  made  by  the  British  Government,  down  to  1852  and 
i8s.*.  as  respects  the  Dutch  farmers  who  had  gone  forth  into  the  wilderness  of 
South  Africa  in  1836. 


300  I'h'IMITIYE  ICELAND 

fnot  yet  recognized  the  Norwegian  Crown,  now  held 
by  Magnus  son  of  Hakon,  made  a  like  submission. 
C  Thenceforward  Iceland  has  followed  the  fortunes  first 
\pi  Norway  and  then  of  Denmark.  In  1814,  when  Nor- 
way was  severed  from  the  Danish  and  transferred  to  the 
Swedish  Crown,  Iceland  ought  to  have  gone  with  Nor- 
way. But  nobody  at  the  Congress  of  Vienna  knew  or 
cared  about  the  matter  !  :  and  so  Iceland  remains  at- 
tached to  Denmark,  for  which  she  has  little  love. 

With  the  free  republic  the  literature  which  had  given 
it  lustre  withered  up  and  disappeared.  Only  one  work 
of  high  merit,  the  religious  poem  called  The  Lily,  was 
produced  in  the  centuries  that  succeeded  down  to  the 
Reformation,  when  the  spirit  of  the  people  was  again 
stirred,  and  a  succession  of  eminent  writers  began  which 
has  never  failed  down  to  our  own  day.  But  in  the  dark- 
est times,  in  the  ignorance  and  gloom  of  the  fifteenth 
century,  in  the  pestilences  and  famine  caused  by  the  ter- 
rible volcanic  eruptions  of  the  eighteenth,  which  are 
said  to  have  destroyed  one-fifth  of  the  population,  the 
Icelanders  never  ceased  to  cherish  and  enjoy  their 
ancient  Sagas.  No  farmhouse  wanted  its  tiny  store  of 
manuscripts,  which  were  and  still  are  read  aloud  in  the 
long  nights  of  winter,  while  the  women  spin  and  the 
men  make  nets  and  harness.  And  it  is  beyond  doubt 
chiefly  owing  to  the  profusion  and  the  literary  splendour 
of  these  works  of  a  remote  antiquity — works  produced  in 
an  age  when  England  and  Germany,  Italy  and  France 
had  nothing  better  than  dull  monkish  annalists  or  the 
reciters  of  such  a  tedious  ballad  epic  as  the  Song  of  the 
Nibelungs — that  the  Icelandic  language  has  preserved 
its  ancient  strength  and  purity,  and  that  the  Icelandic 
nation,  a  handful  of  people  scattered  round  the  edge  of  a 
vast  and  dreary  wilderness,  has  maintained  itself,  in  face 
of  the  overwhelming  forces  of  nature,  at  so  high  a  level 
of  culture,  virtue  and  intelligence. 

1  The  preliminaries  to^the  Treaty  of  Kiel  by  which  Norway  was  severed  from 
the  Danish  Crown  to  be  attached  to  the  Swedish  refer  to  Iceland,  the  Faeroe 
Isles,  and  Greenland  as  having  'never  belonged  to  Norway.' 


VI 

THE   UNITED    STATES    CONSTI- 
TUTION AS  SEEN  IN  THE  PAST 

The  Predictions  of   Hamilton  and  Tocqueville 

He  who  desires  to  discover  what  have  been  the  main 
tendencies  ruling  and  guiding  the  development  of  Ameri- 
can institutions,  will  find  it  profitable  to  examine  what 
were  the  views  held  and  predictions  delivered,  at  dif- 
ferent epochs  in  the  growth  of  the  Republic,  by  acute 
and  well-informed  observers.  There  is  a  sort  of  dra- 
matic interest  in  this  method  of  inquiry,  and  it  is  calcu- 
lated to  temper  our  self-confidence  in  judging  the  pheno- 
mena of  to-day.  Besides,  it  helps  us  to  realize,  better 
than  we  can  do  merely  by  following  the  course  of  events, 
what  aspect  the  political  landscape  wore  from  time  to 
time.  When  we  read  a  narrative,  we  read  into  the  events 
our  knowledge  of  all  that  actually  flowed  from  them. 
When  we  read  what  the  contemporary  observer  ex- 
pected from  them  as  he  saw  them  happening  we  reach 
a  truer  comprehension  of  the  time. 

To  collect  and  set  forth  a  representative  anthology  of 
political  prophecies  made  at  critical  epochs  in  the  history 
of  the  United  States,  would  be  a  laborious  undertaking. 
for  one  would  have  to  search  through  a  large  number 
of  writings,  some  of  them  fugitive  writings,  in  order  to 
present  adequate  materials  for  determining  the  theories 
and  beliefs  prevalent  at  any  given  period.     I  attempt 


802  HAMILTON  AND  TOCQUEVILLE 

nothing  so  ambitious.  I  desire  merely  to  indicate,  by 
a  comparatively  simple  example,  how  such  a  method 
may  be  profitably  followed,  disclaiming  any  pretensions 
to  dig  deep  into  even  the  obvious  and  familiar  materials 
which  students  of  American  history  possess. 

For  this  purpose,  then,  I  will  take  two  famous  books 
— the  one  written  at  the  very  birth  of  the  Union  by  those 
who  watched  its  cradle,  and  recording  incidentally,  and 
therefore  all  the  more  faithfully,  the  impressions  and 
anticipations  of  the  friends  and  enemies  of  the  infant 
Constitution ;  the  other  a  careful  study  of  its  provisions 
and  practical  working  by  a  singularly  fair  and  penetrat- 
ing European  philosopher.  I  choose  these  books  not 
only  because  both  are  specially  representative  and  of 
rare  literary  merit,  but  because  they  are  easily  accessible 
to  European  as  well  as  American  readers,  who  may, 
by  referring  to  their  pages,  supply  the  omissions  which 
want  of  space  will  compel  me  to  make,  and  may  thereby 
obtain  a  more  full  and  graphic  transcript  of  contempo- 
rary opinion.  One  of  these  books  is  The  Federalist 1 — a 
series  of  letters  recommending  the  proposed  Constitu- 
tion for  adoption  to  the  people  of  New  York,  written  in 
1788  by  Alexander  Hamilton,  afterwards  Secretary  of 
the  Treasury,  James  Madison,  afterwards  President 
from  1809  to  1817,  and  John  Jay,  afterwards  Chief  Jus- 
tice from  1789  to  1795.  They  were  all  signed  Publius. 
The  other,  which  falls  not  quite  halfway  between  1788 
and  our  own  time,  is  the  Democracy  in  America  of  Alexis 
de  Tocqueville. 

I.     The  United  States  at  the  Adoption  of  the 
Constitution. 

I  begin  by  briefly  summarizing  the  record  which  The 
Federalist  preserves  for  us  of  the  beliefs  of  the  opponents 
and  advocates  of  the  Draft  Constitution  of  1787  regard- 

1  Thero  arc  sevrr.il  good  editions  of  The  Federalist.  The  latest  and  one  of  the 
best  known  to  me  is  that  edited  by  Mr.  Paul  Leicester  Ford  (New  York,  1898). 


HAMILTON  AND   TOCQUETILLE  303 

ing  the  forces  then  at  work  in  American  politics  and 
the  probable  future  of  the  nation. 

To  understand  those  beliefs,  however,  we  must  bear 
in  mind  what  the  people  of  the  United  States  then  were, 
and  for  that  purpose  I  will  recall  the  reader's  attention 
to  some  of  the  more  salient  aspects  of  the  Republic  at 
the  epoch  when  its  national  life  began. 

In  1783  the  last  British  soldier  quitted  New  York,  the 
last  stronghold  that  was  held  for  King  George.  In  1787 
the  present  Constitution  of  the  United  States  was  framed 
by  the  Convention  at  Philadelphia,  and  in  1788  accepted 
by  the  requisite  number  of  States  (nine).  In  1789 
George  Washington  entered  on  his  Presidency,  the  first 
Congress  met  and  the  machine  began  to  work.  It  was 
a  memorable  year  for  Europe  as  well  as  for  America — 
a  year  which,  even  after  the  lapse  of  more  than  a  cen- 
tury, we  are  scarcely  yet  ripe  for  judging,  so  many  sor- 
rows as  well  as  blessings,  7roAAa  fxev  Za6\a  /ae/uy/xera,  TroXXa 
8e  Xvypd,  were  destined  to  come  upon  mankind  from 
those  elections  of  the  States-General  which  were  pro- 
ceeding in  France  while  Washington  was  being  installed 
at  Philadelphia. 

All  of  the  thirteen  United  States  lay  along  the  Atlantic 
coast.  Their  area  was  827,844  square  miles,  their  popu- 
lation 3,929,214,  little  more  than  half  the  population  of 
New  York  State  in  1900.  Settlers  had  already  begun  to 
cut  the  woods  and  build  villages  beyond  the  Alleghanies  ; 
but  when  Kentucky  was  received  as  a  State  into  the 
Union  in  1792,  she  had  a  population  of  only  80,000.  The 
population  was  wholly  of  English  (or  Anglo-Scottish) 
stock,  save  that  a  few  Dutch  were  left  in  New  York,  a 
few  persons  of  Swedish  blood  in  Delaware,  and  some 
isolated  German  settlements  in  Pennsylvania.  But  in 
spite  of  this  homogeneity  the  cohesion  of  the  States  was 
weak.  Communication  was  slow,  difficult  and  costly. 
The  jealousies  and  suspicions  which  had  almost  proved 
fatal  to  Washington's  efforts  during  the  War  of  Inde- 
pendence were  still  rife.    There  was  some  real  conflict, 


304  HAMILTON  AND  TOCQUEVILLE 

and  a  far  greater  imagined  conflict,  of  interests  between 
the  trading  and  the  purely  agricultural  States,  even  more 
than  between  the  slave  States  and  those  in  which  slavery 
had  practically  died  out.  Many  competent  observers 
doubted  whether  the  new  Federal  Union,  accepted  only 
because  the  Confederation  had  proved  a  failure  and  the 
attitude  of  foreign  powers  was  threatening,  could  main- 
tain itself  in  the  face  of  the  strong  sentiment  of  local 
independence  animating  the  several  colonies,  each  of 
which,  after  throwing  off  the  yoke  of  Britain,  was  little 
inclined  to  brook  any  control  but  that  of  its  own  legisla- 
ture. The  new  Constitution  was  an  experiment,  or 
rather  a  bundle  of  experiments,  whose  working  there 
were  few  data  for  predicting.  It  was  a  compromise,  and 
its  own  authors  feared  for  it  the  common  fate  of  compro- 
mises— to  satisfy  neither  party  and  to  leave  open  rents 
which  time  would  widen.  In  particular,  it  seemed  most 
doubtful  whether  the  two  branches  of  the  Legislature, 
drawn  from  so  wide  an  area  and  elected  on  different 
plans,  would  work  harmoniously,  and  whether  general 
obedience  would  be  yielded  to  an  executive  President 
who  must  necessarily  belong  to  and  seem  to  represent 
one  particular  State  and  section  of  the  country.  Par- 
ties did  not  yet  exist,  for  there  was  as  yet  hardly  a  na- 
tion; but  within  a  decade  they  grew  to  maturity  and 
ferocity.  One  of  them  claimed  to  defend  local  self-gov- 
ernment, the  rights  of  the  people,  democratic  equality ; 
the  other,  the  principle  of  national  unity  and  the  au- 
thority of  the  Federal  power.  One  sympathized  with 
France,  the  other  was  accused  of  leaning  to  an  English 
alliance.  They  were,  or  soon  came  to  be,  divided  not 
merely  on  burning  questions  of  foreign  policy  and  home 
policy,  but  also — and  this  was  an  issue  which  mixed  itself 
up  with  everything  else — as  to  the  extent  of  the  powers 
to  be  allowed  to  the  central  Government  and  its  illa- 
tions to  the  States — questions  which  the  curt  though  ap- 
parently clear  language  of  the  Constitution  had  by  no 
means  exhausted. 


HAMILTON  AND   TOCQVETTLLE  305 

Slavery  was  not  yet  a  burning  question — indeed  it 
existed  to  some  slight  extent  in  the  Middle  as  well  as  in 
the  Southern  States,  but  the  opposition  of  North  and 
South  was  already  visible.  The  Puritanism  of  New  Eng- 
land, its  industries  and  its  maritime  commerce,  gave  it 
different  sentiments  as  well  as  different  interests  from 
those  which  dominated  the  inhabitants  of  the  South,  a 
population  wholly  agricultural,  among  whom  the  influ- 
ence of  Jefferson  was  strong,  and  theories  of  extreme 
democracy  had  made  progress. 

There  was  great  diversity  of  opinion  and  feeling  on 
all  political  questions  in  the  America  of  those  days,  and 
the  utmost  freedom  in  expressing  it.  Over  against  the 
extreme  democrats  stood  an  illustrious  group  whose 
leader  was  currently  believed  to  be  a  monarchist  at 
heart,  and  who  never  concealed  his  contempt  for  the 
ignorance  and  folly  of  the  crowd.  Among  these  men, 
and  to  a  less  extent  among  the  Jeffersonians  also,  there 
existed  no  small  culture  and  literary  power,  and  though 
the  masses  were  all  orthodox  Christians  and,  except  in 
Maryland,  orthodox  Protestants,  there  was  no  lack  of 
scepticism  in  the  highest  circles.  One  may  speak  of 
highest  circles,  for  social  equality,  though  rapidly  ad- 
vancing and  gladly  welcomed,  was  as  yet  rather  a  doc- 
trine than  a  fact :  and  the  respect  for  every  kind  of  au- 
thority was  great.  There  were  neither  large  fortunes 
nor  abject  poverty:  but  the  labouring  class,  then  far  less 
organized  than  it  is  now,  deferred  to  the  middle  class, 
and  the  middle  class  to  its  intellectual  chiefs.  The  clergy 
were  powerful  in  New  England :  the  great  colonial  fami- 
lies enjoyed  high  consideration  in  New  York,  in  Penn- 
sylvania, and  above  all  in  Virginia,  whose  landowners 
seemed  to  reproduce  the  later  semi-feudal  society  of 
England.  Although  all  the  States  were  republics  of  a 
hue.  already  democratic,  every  State  constitution  re- 
quired a  property  qualification  for  the  holding  of  office 
or  a  seat  in  the  Legislature,  and,  in  most  States,  a  simi- 
lar condition  was  imposed  even  on  the  exercise  of  the 


306  HAMILTON  AND  TOCQUEVILLB 

suffrage.  Literary  men  (other  than  journalists)  were 
rare,  the  universities  few  and  old-fashioned  in  their 
methods,  science  scarcely  pursued,  philosophy  absorbed 
in  theology  and  theology  dryly  dogmatic.  But  public 
life  was  adorned  by  many  striking  figures.  Five  men  at 
least  of  that  generation,  Washington,  Franklin,  Hamil- 
ton, Jefferson  and  Marshall,  belong  to  the  history  of  the 
world ;  and  a  second  rank  which  included  John  Adams, 
Madison,  Jay,  Patrick  Henry,  Gouverneur  Morris, 
Roger  Sherman,  James  Wilson,  Albert  Gallatin,  and 
several  other  gifted  figures  less  familiar  to  Europe,  must 
be  mentioned  with  respect. 

Everybody  professed  the  principles  of  the  Declaration 
of  Independence,  and  therefore  held  a  republican  form 
of  government  to  be  the  only  proper,  or  at  any  rate  the 
only  possible  form  for  the  central  authority  as  well  as  for 
the  States.  But  of  the  actual  working  of  republican  gov- 
ernments there  was  very  little  experience,  and  of  the 
working  of  democracies,  in  our  present  sense  of  the 
word,  there  was  really  none  at  all  beyond  that  of  the 
several  States  since  1776,  when  they  broke  loose  from 
the  British  Crown.  Englishmen  are  more  likely  than 
other  Europeans  to  forget  that  in  1788  there  was  in  the 
Old  World  only  one  free  and  no  democratic  nation1. 
In  Europe  there  now  remain  but  two  strong  monarchies, 
those  of  Russia  and  Prussia,  while  the  Western  hemi- 
sphere, scarcely  excepting  Dutch  and  British  Guiana 
and  Canada,  is  entirely  (at  least  in  name)  republican. 
But  the  world  of  1788  was  a  world  full  of  monarchs — 
despotic  monarchs — a  world  which  had  to  go  back  for 
its  notions  of  popular  government  to  the  common- 
wealths of  classical  antiquity.  Hence  the  speculations 
of  those  times  about  the  dangers,  and  merits,  and  ten- 
dencies characteristic  of  free  governments,  were  and 
must  needs  be  vague  and  fantastic,  because  the  mate- 
rials for  a  sound  induction  were  wanting.     Wise  men, 

1  The  Swiss  Confederation  was  hardly  yet  a  nation,  and  few  of  the  cantons 
were  governed  democratically. 


HAMILTON  AND    T0CQUE7ILLE  307 

when  forced  to  speculate,  recurred  to  the  general  prin- 
ciples of  human  nature.  Ordinary  men  went  off  into  the 
air  and  talked  at  large,  painting  a  sovereign  people  as 
reckless,  violent,  capricious  on  the  one  hand,  or  virtu- 
ous and  pacific  on  the  other,  according  to  their  own  pre- 
dilections, whether  selfish  or  emotional,  for  authority 
or  for  liberty.  Though  no  one  has  yet  written  the  na- 
tural history  of  the  masses  as  rulers,  the  hundred  years 
since  1788  have  given  us  materials  for  such  a  natural 
history  surpassing  those  which  Hamilton  possessed  al- 
most as  much  as  the  materials  at  the  disposal  of  Darwin 
exceeded  those  of  Buffon.  Hence  in  examining  the 
views  of  the  Federalist  writers  *  and  their  antagonists, 
we  must  expect  sometimes  to  find  the  diagnosis  inexact 
and  the  prognosis  fanciful. 

II.  Predictions  of   the   Opponents  and   Advocates 
of  the  Constitution. 

Those  who  opposed  the  Draft  Constitution  in  1787, 
a  party  both  numerous  and  influential  in  nearly  every 
State,  were  the  men  specially  democratic  and  also  spe- 
cially conservative.  They  disliked  all  strengthening  of 
government,  and  especially  the  erection  of  a  central  au- 
thority. They  were  satisfied  with  the  system  of  sove- 
reign and  practically  independent  States.  Hence  they 
predicted  the  following  as  the  consequences  to  be  ex- 
pected from  the  creation  of  an  effective  Federal  execu- 
tive and  legislature  2. 

1.  The  destruction  of  the  States  as  commonwealths. 
The  central  government,  it  was  said,  would  gradually 
encroach  upon  their  powers  ;  would  use  the  federal  army 

1  Of  these  writers  Hamilton  must  be  deemed  the  leading  spirit,  not  merely 
because  he  wrote  by  far  the  larger  number  of  letters,  but  because  his  mind  was 
more  penetrating  and  commanding  than  either  Madison's  or  Jay's.  Madison  ren- 
dered admirable  service  in  the  Philadelphia  Convention  of  1787,  but  afterwards 
yielded  to  the  influence  of  Jefferson,  a  character  with  less  balance  but  more  force 
and  more  intellectual  fertility. 

a  I  take  no  account  of  those  objections  to  the  Constitution  which  may  be 
deemed  to  have  been  removed  by  the  first  eleven  amendments. 


308  IIWIIl.ToX     \\1)   TOCQVETTLLE 

to  overcome  their  resistance ;  would  supplant  them  in 
the  respect  of  their  citizens ;  would  at  last  swallow  them 
up.  The  phrase  '  consolidation  of  the  Union;  which 
had  been  used  by  the  Convention  of  1787  to  recommend 
its  draft,  was  laid  hold  of  as  a  term  of  reproach.  '  Con- 
solidation,' the  absorption  of  the  States  by  or  into  one 
centralized  government,  became  the  popular  cry,  and 
carried  away  the  unthinking. 

2.  The  creation  of  a  despot  in  the  person  of  the  Presi- 
dent. His  legal  authority  would  be  so  large  as  not  only 
to  tempt  him,  but  to  enable  him,  to  extend  it  further, 
at  the  expense  of  the  liberties  both  of  States  and  of  peo- 
ple. '  Monarchy,'  it  was  argued,  '  thrown  off  after  such 
efforts,  will  in  substance  return  with  this  copy  of  King 
George  III,  whose  command  of  the  federal  army,  power 
over  appointments,  and  opportunities  for  intriguing  with 
foreign  powers  on  the  one  hand  and  corrupting  the 
legislature  on  the  other1,  will  render  the  new  tyrant 
more  dangerous  than  the  old  one.  Or  if  he  be  more 
open  to  avarice  than  to  ambition,  he  will  be  the  tool  of 
foreign  sovereigns  and  the  means  whereby  they  will  con- 
trol or  enslave  America  2. 

3.  The  Senate  will  become  an  oligarchy.  Sitting  for 
six  years,  and  not  directly  elected  by  the  people,  it 
'  must  gradually  acquire  a  dangerous  pre-eminence  in 

1  See  The  Federalist,  No.  LIV. 

2  The  Federalist,  No.  LXVI,  p.  667.  '  Calculating  upon  the  aversion  of  the 
people  to  monarchy,  the  writers  against  the  Constitution  have  endeavoured  to 
enlist  all  their  jealousies  and  apprehensions  in  opposition  to  the  intended  Presi- 
dent of  the  United  States,  not  merely  as  the  embryo  but  as  the  full-grown 
progeny  of  that  detested  parent.  They  have  to  establish  the  pretended  affinity, 
not  scrupled  to  draw  resources  even  from  the  regions  of  fiction.  The  authority  of 
a  magistrate  in  few  instances  greater,  in  some  instances  less,  than  those  of  a  Gov- 
ernor of  New  York,  have  been  magnified  into  more  than  royal  prerogatives.  He 
has  been  decorated  with  attributes  superior  in  dignity  and  splendour  to  those  of  a 
King  of  Great  Britain.  He  has  been  shown  to  us  with  the  diadem  sparkling  on 
his  brow  and  the  imperial  purple  flowing  in  his  train.  He  has  been  seated  on  a 
throne  surrounded  with  minions  and  mistresses,  giving  audience  to  the  envoys 
of  foreign  potentates  in  all  the  supercilious  pomp  of  majesty.  The  images  of 
Asiatic  despotism  and  voluptuousness  have  scarcely  been  wanting  to  crown 
the  exaggerated  scene.  We  have  been  taught  to  tremble  at  the  terrific  visages 
of  murdering  janizaries,  and  to  blush  at  the  unveiled  mysteries  of  a  future 
seraglio.' 

These  were  the  days  when  Johnson  and  Gibbon  ruled  English  style. 


HAMILTON  AND  TOCQVEVILLE  309 

the  government,  and  finally  transform  it  into  a  tyranni- 
cal aristocracy  V 

4.  The  House  of  Representatives  will  also,  like  every 
other  legislature,  aim  at  supremacy.  Elected  only  once 
in  two  years,  it  will  forget  its  duty  to  the  people.  It 
will  consist  of  'the  wealthy  and  well-born,'  and  will 
try  to  secure  the  election  of  such  persons  only  as  its 
members  2. 

5.  The  larger  States  will  use  the  greater  weight  in  the 
government  which  the  Federal  constitution  gives  them 
to  overbear  the  smaller  States. 

6.  The  existence  of  a  strong  central  government  is 
not  only  likely,  by  multiplying  the  occasions  of  diplo- 
matic intercourse  with  foreign  powers,  to  give  openings 
for  intrigues  by  them  dangerous  to  American  independ- 
ence, but  likely  also  to  provoke  foreign  wars,  in  which 
the  republic  will  perish  if  defeated,  or  if  victorious  main- 
tain herself  only  by  vast  expenditure,  with  the  additional 
evil  of  having  created  in  an  army  a  standing  menace  to 
freedom. 

That  some  of  these  anticipations  were  inconsistent 
with  others  of  them  was  no  reason  why  even  the  same 
persons  should  not  resort  to  both  in  argument.  Any 
one  who  wishes  to  add  to  the  number,  for  I  have  quoted 
but  a  few,  being  those  which  turn  upon  the  main  out- 
lines of  the  Philadelphia  draft,  may  do  so  by  referring 
to  the  record,  known  at  Elliott's  Debates,  of  the  discus- 
sions in  the  several  State  Conventions  which  deliberated 
on  the  new  Constitution.  It  is  an  eminently  instructive 
record. 

I  pass  from  the  opponents  of  the  Constitution  to  its 
advocates.  Hamilton  and  its  friends  sought  in  it  a 
remedy  against  what  they  deemed  the  characteristic 
dangers  of  popular  government.  It  is  by  dwelling  on 
these  dangers  that  they  recommend  it.  We  can  per- 
ceive, however,  that,  while  lauding  its  remedial  power, 

»  The  Federalist,  No.  LXII. 

a  The  Federalist,  Nos.  LVI  and  LIX. 


310  HAMILTON  A.\D   TOCQVEVILLB 

the}  arc  aware  how  deep-seated  such  dangers  are,  and 
how  likely  to  recur  even  after  the  adoption  of  the  Con- 
stitution. The  language  which  Hamilton  held  in  private 
proves  that  he  desired  a  more  centralized  government, 
which  would  have  approached  nearer  to  that  British 
Constitution  which  he  regarded  as  being,  with  all  its 
defects  (and  partly  owing  to  its  corruptions !)  the  best 
model  for  free  nations1.  He  feared  anarchy,  and 
thought  that  only  a  strong  national  government  could 
avert  it.  And  in  a  remarkable  letter  written  in  Febru- 
ary, 1802,  under  the  influence  of  disappointment  with  the 
course  events  were  then  taking,  he  describes,  in  his 
somewhat  sweeping  way,  the  Constitution  he  was  '  still 
labouring  to  prop  '  as  a  '  frail  and  worthless  fabric' 

We  may  therefore  legitimately  treat  his  list  of  evils 
to  be  provided  against  by  the  new  Federal  Government 
as  indicating  the  permanently  mischievous  tendencies 
which  he  foresaw.  Some  of  them,  he  is  obliged  to  admit, 
cannot  be  wholly  averted  by  any  constitutional  devices, 
but  only  by  the  watchful  intelligence  and  educated  virtue 
of  the  people. 

The  evils  chiefly  feared  are  the  following: — 

1.  The  spirit  and  power  of  faction,  which  is  so  clearly 
the  natural  and  necessary  offspring  of  tendencies  always 
present  in  mankind,  that  wherever  liberty  exists  it  must 
be  looked  for  -. 

Its  causes  are  irremovable  ;  all  you  can  do  is  to  control 
its  effects,  and  the  best  prospect  of  overcoming  them 
is  afforded  by  the  representative  system  and  the  wide 
area  of  the  United  States  with  the  diversities  among  its 
population. 

2.  Sudden  impulses,  carrying  the  people  away  and  in- 
ducing hasty  and  violent  measures  3. 

3.  Instability  in  foreign  policy,  due  to  changes  in  the 

1  Though  he,  like  other  observers  of  that  time,  had  not  realized,  and  might 
not  have  relished,  the  supremacy,  now  become  omnipotence,  whl<  h  the  Mouse  of 
Commons  had  already  won. 

7  The  Federalist,  No.  X  (written  by  Madison),  and  in  other  letters. 

'■>  The  Federalist,  No.  LX1I. 


HAMILTON  AXD   TOCQVETILLE  311 

executive  and  in  public  sentiment,  and  rendering  neces- 
sary the  participation  of  a  comparatively  small  council 
or  Senate  in  the  management  of  this  department. 

4.  Ill-considered  legislation.  '  Facility  and  excess  of 
law-making1,'  and  'inconstancy  and  mutability  in  the 
laws  V  form  the  '  greatest  blemish  in  the  character  and 
genius  of  our  governments.' 

5.  The  Legislature  is  usually  the  strongest  power  in 
free  governments.  It  will  seek,  as  the  example  of  the 
English  Parliament  shows,  to  encroach  upon  the  other 
departments ;  and  this  is  especially  to  be  feared  from 
the  House  of  Representatives  as  holding  the  power  of 
the  purse  3. 

6.  The  States,  and  especially  the  larger  States,  may 
overbear  the  Federal  Government.  They  have  closer 
and  more  constant  relations  with  the  citizen,  because 
they  make  and  administer  the  ordinary  laws  he  lives 
under.  His  allegiance  has  hitherto  belonged  to  them, 
and  may  not  be  readily  given  to  the  central  authority. 
In  a  struggle,  should  a  struggle  come,  State  power  is 
likely  to  prevail  against  Federal  power. 

7.  There  is  in  republics  a  danger  that  the  majority 
may  oppress  the  minority.  Already  conspicuous  in  some 
of  the  State  governments,  as  for  instance  in  Rhode 
Island,  this  danger  may  be  diminished  by  the  applica- 
tion of  the  federal  system  to  the  great  area  of  the  Union, 
where  '  society  will  be  broken  into  so  many  parts,  in- 
terests, and  classes  of  citizens,  that  the  rights  of  indi- 
viduals or  of  the  minority  will  be  in  little  danger  from 
interested  combinations  of  the  majority  *.' 

8.  Another  source  of  trouble  is  disclosed  by  the  rash 

»  The  Federalist,  No.  LXI. 

»  The  Federalist,  No.  LXXII. 

3  '  The  Legislative  Department  is  everywhere  (i.  e.  in  all  the  States)  extending 
the  sphere  of  its  activity  and  drawing  all  power  into  its  impetuous  vortex.  .  .  . 
It  is  against  the  enterprising  ambition  of  this  department  that  the  People  ought  to 
indulge  all  their  jealousy  and  exhaust  all  their  precautions'  (The  Federalist,  No. 
XLVII).  The  people  have  now  begun  to  resort  to  precautions;  but  it  is  not  the 
ambition  of  State  legislatures  that  is  feared,  it  is  their  subserviency  to  private 
interests  or  the  party  machine. 

*  The  Federalist,  No.  L. 


312  HAMILTON  AM)  TOCQVEYILLE 

and  foolish  experiments  which  some  States  have  tried 
in  passing  laws  which  threaten  the  validity  of  contracts 
and  the  security  of  property.  There  are  also  signs  of 
weakness  in  the  difficulty  which  State  Governments  have 
found  in  raising  revenue  by  direct  taxation1.  Citizens 
whose  poverty  does  not  excuse  their  want  of  public 
spirit  refuse  to  pay;  and  the  administration  fears  to 
coerce  them. 

Not  less  instructive  than  the  fears  of  The  Federalist 
writers  are  their  hopes.  Some  of  the  perils  which  have 
since  been  disclosed  are  not  divined.  Some  institutions 
which  have  conspicuously  failed  are  relied  on  as  full  of 
promise. 

The  method  of  choosing  the  President  is  recom- 
mended with  a  confidence  the  more  remarkable  because 
it  was  the  point  on  which  the  Convention  had  been  most 
divided  and  had  been  latest  in  reaching  an  agreement. 

'  If  the  manner  of  the  appointment  of  the  Chief  Magi- 
strate be  not  perfect,  it  is  at  least  excellent.  It  unites 
in  an  eminent  degree  all  the  advantages  the  union  of 
which  was  to  be  wished  for.  .  .  .  The  process  of  elec- 
tion affords  a  moral  certainty  that  the  office  of  President 
will  never  fall  to  the  lot  of  any  one  who  is  not  in  an 
eminent  degree  endowed  with  the  requisite  qualifica- 
tions. Talents  for  low  intrigue,  and  the  little  arts  of 
popularity,  may  alone  suffice  to  elevate  a  man  to  the 
first  honours  in  a  single  State,  but  it  will  require  other 
talents  and  a  different  kind  of  merit  to  establish  him  in 
the  confidence  and  esteem  of  the  whole  Union,  or  of  so 
considerable  a  portion  of  it  as  would  be  necessary  to 
make  him  a  successful  candidate  for  the  distinguished 
office  of  President  of  the  United  States.  It  will  not  be 
too  strong  to  say  that  there  will  be  a  constant  probability 
of  seeing  the  station  filled  by  characters  pre-eminent  for 
ability  and  virtue  -.' 

>  The  Federalist,  No.  XII. 

1  The  Federalist,  No.  LXVII.  In  a.  n.  1800,  twelve  years  after  Hamilton 
wrote  this  passage,  the  contest  for  the  Presidency  lay  between  Jefferson  and 
Aaron  Burr,  and   Hamilton  was  compelled  by  his  sense  of  Burr's  demerits   to 


HAMILTON  AND   TOCQUEVILLE  313 

It  is  assumed  that  America  will  continue  an  agri- 
cultural and  (to  a  less  extent)  a  commercial  country, 
but  that  she  will  not  develop  manufactures;  and  also 
that  the  fortunes  of  her  citizens  will  continue  to  be 
small1.  No  serious  apprehensions  regarding  the  influ- 
ence of  wealth  in  elections  or  in  politics  generally  are 
expressed. 

The  contingency  of  a  division  of  the  States  into  two 
antagonistic  groups  is  not  contemplated.  When  the 
possibility  of  State  combinations  is  touched  on,  it  is 
chiefly  with  reference  to  the  action  of  small  and  of  large 
States  respectively.  In  particular  no  hint  is  dropped  as 
to  the  likelihood  of  the  institution  of  slavery  becoming 
a  bond  to  unite  the  Southern  States  and  a  cause  of  quar- 
rel between  them  and  the  Northern.  Yet  slavery  had 
given  trouble  in  the  Philadelphia  Convention,  and  an 
opposition  of  North  and  South  grounded  upon  it  soon 
emerged. 

Although  the  mischiefs  of  faction  are  dwelt  on,  noth- 
ing indicates  that  its  embodiment  in  highly  developed 
party  systems,  whose  organizations  might  overshadow 
the  legal  government,  had  occurred  to  any  one's  mind. 
Still  less,  of  course,  is  there  any  anticipation  of  the  influ- 
ence to  be  exerted  on  politics  by  the  distribution  of 
offices.  Not  till  long  afterwards  were  they  treated  as 
'  spoils  of  war.' 

urge  his  party  to  vote  (when  the  choice  came  before  the  House  of  Representa- 
tives) for  Jefferson,  his  own  bitter  enemy.  What  he  thought  of  Burr,  who,  but 
for  his  intervention,  would  certainly  have  obtained  the  chief  magistracy  of  the 
nation  (and  by  whose  hand  he  ultimately  died),  may  be  inferred  from  the  fact  that 
he  preferred  as  President  the  man  of  whom  he  thus  writes:  'I  admit  that  his 
(Jefferson's)  politics  are  tinctured  with  fanaticism ;  that  he  is  too  much  in  earnest 
in  his  democracy  ;  that  he  has  been  a  mischievous  enemy  to  the  principal  meas- 
ures of  our  past  administration  ;  that  he  is  crafty  and  persevering  in  his  objects  ; 
that  he  is  not  scrupulous  about  the  means  of  success,  nor  very  mindful  of  truth  ; 
and  that  he  is  a  contemptible  hypocrite.  But,  &c.'  (Letter  to  James  A.  Bayard, 
Jan.  16,  1801.) 

After  this  it  is  superfluous,  as  it  would  be  invidious,  to  dwell  on  the  deficiencies 
of  some  recent  Presidents  or  Presidential  candidates. 

1  '  The  private  fortunes  of  the  President  and  Senators,  as  they  must  all  be 
American  citizens,  cannot  possibly  be  sources  of  danger'  (The  Federalist,  No. 
LIV). 


314  HAMILTON  AND   TOCQUBVILLB 

III.     Criticism  of  the  Predictions  of  1788. 

Let  us  now  see  which  of  these  views  and  forecasts 
have  been  verified  by  the  event. 

Of  those  put  forth  by  the  opponents  of  the  Constitu- 
tion not  one  has  proved  true.  The  States  are  still 
strong,  the  President  is  not  a  despot,  though  for  a  time 
during  the  Civil  War  he  came  near  being  one,  nor  has 
he  ever  fallen  under  the  influence  of  any  European 
power.  The  House  does  not  consist  of  the  '  wealthy  and 
well-born.'  The  larger  States  do  not  combine  against 
nor  press  hardly  on  the  smaller.  Xo  great  country  has 
had  so  few  wars  or  indeed  so  few  foreign  complications 
of  any  kind1.  The  Senate  is  still  often  called  'an  oli- 
garchy,' but  this  means  only  that  it  consists  of  compara- 
tively few  persons,  most  of  them  wealthy,  and  that  it  has 
a  strong  corporate  feeling  in  favour  of  the  personal 
interests  of  each  of  its  members.  It  is  really  as  depend- 
ent on  public  opinion  as  the  House,  perhaps  even  more 
afraid  of  public  opinion,  and  as  directly  the  creature 
of  party  machinery,  though  less  directly  of  popular 
election. 

One  is  surprised  to  find  that  of  the  many  arrows  of 
accusation  levelled  at  the  Constitution,  all  should  have 
flown  wide  of  the  mark. 

The  deeper  insight  and  more  exact  thinking  of  Hamil- 
ton and  Madison  fastened  upon  most  of  the  real  and 
permanent  weaknesses  in  popular  government.  Yet 
even  they  could  not  foresee  the  particular  forms  which 
those  weaknesses  would  assume  in  the  new  nation.  To 
examine  in  detail  the  eight  points  specified  above  would 
involve  an  examination  of  American  history  for  a  cen- 
tury. I  shall  therefore  simply  indicate  in  a  word  or  two 
the  extent  to  which,  in  each  case,  the  alarms  or  predic- 
tions of  The  Federalist  may  be  deemed  well  grounded. 

1  Three  wars  since  1789:  that  of  18:2,  that  of  1845,  and  that  of  1898.  Every  one 
of  these  might  no  doubt  have  been  avoided  with  honour,  and  two  of  them  savoured 
of  appression,  but  the  same  may  be  said  of  nearly  all  the  wars  of  European 
States. 


HAMILTON  AND   TOCQVEVILLE  315 

1.  The  spirit  of  faction  has  certainly,  as  Madison  ex- 
pected, proved  less  intense  over  the  large  area  of  the 
Union  than  it  did  in  the  Greek  republics  of  antiquity  or 
in  the  several  States  from  1776  to  1789.  On  the  other 
hand,  the  bonds  of  sympathy  created  by  the  Federal  sys- 
tem have  at  times  enabled  one  State  to  infect  another 
with  its  own  vehemence.  But  for  South  Carolina,  there 
would  have  been  no  secession  in  1861.  Since  1880  the 
'  demon  of  faction  '  has  been  less  powerful  in  the  parties 
than  at  any  previous  date  since  the  so-called  '  Era  of 
Good  Feeling  '  in  1820. 

2.  Sudden  popular  impulses  there  have  been.  But 
finding  a  ready  and  constitutional  expression  in  elec- 
tions, they  do  not  induce  a  resort  to  arms,  while  the 
elaborate  system  of  checks  on  legislation  seldom  allows 
them  to  result  in  the  passing  of  dangerous  measures  by 
Congress.  In  some  States  the  risk  of  bad  laws  is  serious, 
but  it  is  lessened  by  the  provisions  of  the  Federal  Con- 
stitution as  well  as  by  the  veto  power  of  the  State  Gov- 
ernor and  the  restrictions  of  recent  State  Constitutions. 

3.  The  early  history  of  the  Union  furnishes  illustra- 
tions of  feebleness  and  inconstancy  in  foreign  policy, 
yet  not  greater  than  those  which  mark  most  monarchies. 
Royal  caprice,  or  the  influence  of  successive  favourites, 
has  proved  more  pernicious  in  absolute  kingdoms  or 
principalities  than  popular  fickleness  in  republics.  That 
the  foreign  policy  of  the  United  States  was  singularly 
consistent  down  till  1898,  when  it  suddenly  took  an  en- 
tirely '  new  departure,'  was  not  due  to  the  Senate.  It 
must  be  credited  partly  to  the  good  sense  of  the  people, 
partly  to  the  fact  that  the  position  and  interests  of  the 
nation  prescribed  certain  broad  and  simple  lines. 

4.  Whatever  may  be  thought  of  its  handling  of  private 
bills,  Congress  was  seldom  prone  to  haste  or  reckless 
expenditure  in  legislation  on  public  matters,  until  it 
passed  the  amazing  Pensions  Act  of  1890.  Nor  has  it 
given  the  country  too  many  laws.  It  has  been  on  the 
whole  more  blameable  for  what  it  neglects  or  postpones 


316  HAMILTOS  AND  TOCQUEYILLE 

than  for  what  it  enacts.    The  censure  is  more  true  of  the 
States,  especially  the  newer  Western  States. 

5.  The  House  of  Representatives  has  doubtless  sought 
to  extend  its  sway  at  the  expense  of  other  depart- 
ments. Whether  it  has  succeeded  is  a  question  on  which 
competent  observers  in  America  itself  differ;  but  the 
fact  of  their  differing  proves  that  the  encroachments 
have  not  been  considerable.  Whenever  the  President  is 
weak  or  unpopular,  Congress  seems  to  be  gaining  on 
the  Executive  Chief.  When  the  latter  is  or  seems 
strong,  he  can  keep  the  Legislature  at  bay. 

6.  In  the  struggle  which  never  quite  ceases,  though 
it  is  often  scarcely  noticed,  between  the  States  and  the 
Federal  Government,  the  States  have  on  the  whole  lost 
ground.  Nor  are  the  larger  States  practically  more 
formidable  than  the  small  ones.  The  largest  is  small 
compared  with  the  immense  Union.  No  State  would 
now  venture  to  brave  the  Federal  Judiciary  as  Georgia 
did,  and  for  a  time  did  successfully  (1832),  in  one  of  the 
painful  cases  regarding  the  Cherokee  Indians. 

7.  The  so-called  Tyranny  of  the  Majority,  a  subject 
too  large  to  be  fully  examined  here1,  has  not  hitherto 
proved  a  serious  evil  in  America.  This,  however,  is  due 
rather  to  the  character  and  habits  of  the  people  and  their 
institutions  generally  than  to  the  mere  extent  and  popu- 
lation of  the  Union,  on  which  the  Federalist  writers  relied. 

8.  There  has  been  some  unwise  Congressional  legis- 
lation, especially  in  currency  matters,  and,  of  course, 
much  more  of  unwise  State  legislation.  But  property 
is  secure,  and  the  sense  of  civic  duty  seems,  on  the  whole, 
to  be  improving. 

It  will  appear  from  this  examination,  and  from  the 
fact  (noted  a  few  pages  back)  that  some  remarkable  de- 
velopments which  political  life  has  taken  never  crossed 
the  minds  of  the  authors  of  The  Federalist,  that  these 
wisest  men  of  their  time  did  not  foresee  what  strike  us 

'The  subject  is  discussed  in  the  author's  American  Commonwealth,  chaps 
Ixxxiv  and  lxxxv. 


HAMILTON  AXD  TOCQVETILLE  317 

to-day  as  the  specially  characteristic  virtues  and  faults  of 
American  democracy.  Neither  the  spoils  system  nor 
the  system  of  party  nominations  by  wire-pullers  crossed 
their  minds.  They  did  not  foresee  the  inordinate  multi- 
plication of  elections,  nor  the  evils  of  confining  eligibility 
for  a  seat  in  the  legislature  to  a  person  resident  in  the 
electing  district,  nor  the  disposition  to  '  play  down '  to 
the  masses  by  seductive  proposals.  That  the  power 
which  money  might  come  to  exert  lay  quite  out  of  their 
view  is  not  to  be  wondered  at,  for  no  large  fortunes  then 
existed.  No  student  of  history  will  deem  that  these 
omissions  detract  from  their  greatness,  for  history 
teaches  nothing  more  plainly  than  the  vanity  of  predic- 
tions in  the  realm  of  what  we  call  the  moral  and  political 
sciences,  in  religion,  in  ethics,  in  sociology,  in  govern- 
ment and  politics.  Deep  thinkers  help  us  when  they  un- 
fold those  permanent  truths  of  human  nature  which 
come  everywhere  into  play.  Historians  help  us  when, 
by  interpreting  the  past,  they  demonstrate  what  are  the 
tendencies  that  have  gone  to  create  the  present.  Ob- 
servers keen  enough  to  interpret  the  underlying  pheno- 
mena of  their  own  time  may  help  us  by  showing  which 
of  the  tendencies  now  at  work  are  likely  to  become  rul- 
ing factors  in  the  near  future.  But  beyond  the  near 
future — that  is  to  say,  beyond  the  lifetime  of  the  genera- 
tion which  already  holds  power — no  true  philosopher 
will  venture.  He  may  indulge  his  fancy  in  picturing  the 
details  of  the  remoter  landscape ;  but  he  knows  that  it 
is  a  region  fit  for  fancy,  not  for  science.  In  the  works 
of  great  thinkers  there  are  to  be  found  some  happy 
guesses  about  times  to  come ;  but  these  are  few  indeed, 
compared  with  the  prophecies  whose  worthlessness  was 
so  soon  revealed  that  men  forgot  they  had  ever  been 
made,  or  the  dreams  which,  like  those  of  Dante,  idealized 
an  impossible  future  from  an  irrevocable  past. 

As  regards  the  views  of  Hamilton  and  Madison,  who, 
be  it  remembered,  do  not  present  themselves  as  pro- 
phets, but  as  the  censors  of  present  evils  which  they 


318  HAMILTON  AND  TOCQUETILLE 

are  seeking  to  remedy,  it  may  be  added  that  the  Consti- 
tution which  they  framed  and  carried  checked  some  of 
these  very  evils  (e.g.  the  unjust  law-making  and  reckless 
currency  experiments  of  the  State  Legislatures) ;  and 
that  it  was  obviously  impossible  till  the  Federal  govern- 
ment had  begun  to  work  to  say  how  the  existing  forces 
could  adapt  themselves  to  it.  Hamilton  remarks  in  one 
of  his  letters  that  he  holds  with  Montesquieu  that  a 
nation's  form  of  government  ought  to  be  fitted  to  it  as 
a  suit  of  clothes  is  fitted  to  its  wearer1.  He  would 
doubtless  have  added  that  one  cannot  make  sure  of  the 
fit  until  the  suit  has  been  tried  on. 

We  must  remember,  moreover,  that  the  causes  which 
have  affected  the  political  growth  of  America  are  largely 
causes  which  were  in  1788  altogether  beyond  human 
ken.  The  cotton  gin,  Napoleon's  willingness  to  sell 
Louisiana,  steam  communications  by  water  and  land, 
Irish  and  German  immigration,  have  swayed  the  course 
of  that  history ;  but  even  the  first  of  these  factors  had 
not  risen  over  the  horizon  in  that  year,  and  the  last  did 
not  become  potent  till  halfway  through  the  nineteenth 
century  2. 

What  the  sages  of  the  Convention  do  show  us  are 
certain  tendencies  they  discern  in  their  contemporaries, 
viz. : — 

Recklessness  and  unwisdom  in  the  masses,  producing 
bad  laws. 

Unwillingness  to  submit  to  or  support  a  strong 
government. 

Abuse  by  the  majority  of  its  legal  power  over  the 
minority. 

Indifference  to  national  as  compared  with  local  and 
sectional  interests,  and  consequent  preference  of  State 
loyalty  to  national  loyalty. 

'  '  I  hold  with  Montesquieu  that  a  fjovernment  must  be  fitted  to  a  nation  as  much 
as  a  coat  to  the  individual  ■  and  consequently  that  what  may  be  Rood  at  Philadel- 
phia maybe  bad  at  Paris  and  ridiculous  at  Petenburjrh.'    To  Lafayette,  Jan.  6,  1799. 

1  The  first  cargo  of  cotton  was  sent  from  America  to  Europe  in  i7t)i,and  the 
cotton  gin  invented  in  1793. 


HAMILTON  AXD   T0CQVETJL1.E  319 

That  each  of  these  tendencies  then  existed,  and  might 
have  been  expected  to  work  for  evil,  admits  of  no  doubt. 
But  if  we  ask  American  history  what  it  has  to  say  about 
their  subsequent  course,  the  answer  will  be  that  the 
second  and  third  tendencies  have  declined,  and  do  not 
at  present  menace  the  public  welfare,  while  the  first, 
though  never  absent  and  always  liable  to  marked  recru- 
descence, as  the  annals  of  the  several  States  prove,  has 
done  comparatively  little  harm  in  the  sphere  of  national 
government.  As  to  the  fourth,  which  Hamilton  seems 
to  have  chiefly  feared,  it  ultimately  took  the  form,  not 
of  a  general  centrifugal  force,  impelling  each  State  to  fly 
off  from  the  system,  but  of  a  scheme  for  the  separation 
of  the  Southern  or  slave-holding  States  into  a  separate 
Confederacy,  and  in  this  form  it  received,  in  1865,  a 
crushing  and  apparently  final  defeat1. 

IV.    TOCQUEVILLE   AND   HIS    BOOK. 

Fifty-one  years  after  the  recognition  of  the  indepen- 
dence of  the  United  States,  sixty-seven  years  before  the 
beginning  of  the  twentieth  century,  Alexis  de  Tocque- 
ville  published  his  Democracy  in  America,  one  of  the  few 
treatises  on  the  philosophy  of  politics; which  has  risen  to 
the  rank  of  a  classic.  His  book,  therefore,  stands  rather 
further  than  halfway  back  between  our  own  days  and 
those  first  days  of  the  Republic  which  we  know  from  the 
writings  of  the  Fathers,  of  Washington,  Jefferson, 
Adams,  Hamilton,  Madison.  It  offers  a  means  of  mea- 
suring the  changes  that  had  passed  on  the  country  dur- 
ing the  half-century  from  the  birth  of  the  Union  to  the 
visit  of  its  most  famous  European  critic,  and  again  from 
the  days  of  that  critic  to  our  own. 

It  is  a  classic,  and  because  it  is  a  classic,  one  may 
venture  to  canvas  it  freely  without  the  fear  of  seeming 

1  When  we  come  to  Tocqueville,  we  shall  find  him  touching  but  lightly  on  the 
two  first  of  the  above  tendencies  (partly,  perhaps,  because  he  attends  too  little  to 
the  State  governments),  but  emphasizing  the  third  and  fearing  from  the  fourth 
the  dissolution  of  the  Union. 


320  HAMILTON  AND   TOCQUETILLE 

to  detract  from  the  fame  of  its  author.  The  more  one 
reads  Tocqueville,  the  more  admiration  does  one  feel  for 
the  acuteness  'of  his  observation,  for  the  delicacy  of  his 
analysis,  for  the  elegant  precision  of  his  reasonings, 
for  the  limpid  purity  of  his  style ;  above  all,  for  his  love 
of  truth  and  the  elevation  of  his  character.  He  is  not 
only  urbane,  but  judicial ;  not  only  noble,  but  edifying. 
There  is  perhaps  no  book  of  the  generation  to  which  he 
belonged  which  contains  more  solid  wisdom  in  a  more 
attractive  dress. 

We  have  here,  however,  to  regard  the  treatise,  not 
as  a  model  of  art  and  a  storehouse  of  ethical  maxims, 
but  as  a  picture  and  criticism  of  the  government  and 
people  of  the  United  States.  And  before  using  it  as  evi- 
dence of  their  condition  seventy  years  ago,  we  must  ap- 
praise the  reliance  to  be  placed  upon  it1. 

First  let  it  be  observed  that  not  only  are  Tocqueville's 
descriptions  of  democracy  as  displayed  in  America  no 
longer  true  in  many  points,  but  that  in  certain  points 
they  never  were  true.  That  is  to  say,  some  were  true  of 
America,  but  not  of  democracy  in  general,  while  others 
were  true  of  democracy  in  general,  but  not  true  of  Amer- 
ica. It  is  worth  while  to  attempt  to  indicate  the  causes 
of  such  errors  as  may  be  discovered  in  his  picture,  be- 
cause they  are  errors  which  every  one  who  approaches 
a  similar  task  has  to  guard  against.  Tocqueville  is  not 
widely  read  in  the  United  States,  where  the  scientific, 
historical,  and  philosophical  study  of  the  institutions  of 
the  country,  apart  from  the  legal  study  of  the  Constitu- 
tion, is  of  comparatively  recent  growth.  He  is  less  read 
than  formerly  in  England  and  even  in  France.  But  his 
views  of  the  American  government  and  people  have  so 
passed  into  the  texture  of  our  thoughts  that  we  cannot 
shake  off  his  influence,  and,  in  order  to  profit  by  it,  are 
bound  to  submit  his  conclusions  and  predictions  to  a 
searching  though  always  respectful  examination. 

1  Some  interesting-  remarks  upon  Tocqueville's  tour  in  America  and  upon  his 
views  of  American  affairs  may  be  found  in  President  Oilman's  Introduction  to  a 
recent  edition  (1898)  of  the  English  translation  of  Tocqueville's  book. 


HAMILTON  AND   TOC'QUEYILLE  321 

The  defects  of  the  book  are  due  to  three  causes.  He 
had  a  strong  and  penetrating  intellect,  but  it  moved  by- 
preference  in  the  a  priori  or  deductive  path,  and  his 
power  of  observation,  quick  and  active  as  it  was,  did 
not  lead  but  followed  the  march  of  his  reasonings.  It 
will  be  found,  when  his  method  is  closely  scrutinized, 
that  the  facts  he  cites  are  rather  the  illustrations  than 
the  sources  of  his  conclusions.  He  had  studied  America 
carefully  and  thoroughly.  But  he  wanted  the  necessary 
preparation  for  that  study.  His  knowledge  of  England, 
while  remarkable  in  a  native  of  continental  Europe,  was 
not  sufficient  to  show  him  how  much  in  American  insti- 
tutions is  really  English,  and  explainable  only  from  Eng- 
lish sources. 

He  wrote  about  America,  and  meant  to  describe  it 
fully  and  faithfully.  But  his  heart  was  in  France,  and 
the  thought  of  France,  never  absent  from  him,  uncon- 
sciously coloured  every  picture  he  drew.  It  made  him 
think  things  abnormal  which  are  merely  un-French ;  it 
made  him  attach  undue  importance  to  phenomena  which 
seemed  to  explain  French  events  or  supply  a  warning 
against  French  dangers. 

He  reveals  his  method  in  the  introduction  to  his  book. 
He  draws  a  fancy  sketch  of  a  democratic  people,  based 
on  a  few  general  principles,  passes  to  the  condition  of 
France,  and  then  proceeds  to  tell  us  that  in  America  he 
went  to  seek  the  type  of  democracy — democracy  pure 
and  simple — in  its  normal  shape. 

'  J'avoue  que  dans  l'Amerique,  j'ai  vu  plus  que  TAmer- 
ique;  j'y  ai  cherche  une  image  de  la  democratic  elle- 
meme,  de  ses  penchants,  de  son  caractere,  de  ses  pre- 
juges,  de  ses  passions.' 

Like  Plato  in  the  Republic,  he  begins  by  imagining 
that  there  exists  somewhere  a  type  or  pattern  of  demo- 
cracy, and  as  the  American  Republic  comes  nearest  to 
this  pattern,  he  selects  it  for  examination.  He  is  aware, 
of  course,  that  there  must  be  in  every  country  and  peo- 
ple many  features  special  to  the  country  which  reappear 
21 


3-22  HAMILTON  AXD   TOCQUETILLE 

in  its  government,  and  repeatedly  observes  that  this  or 
that  is  peculiar  to  America,  and  must  not  be  taken  as 
necessarily  or  generally  true  of  other  democracies.  But 
in  practice  he  underrates  the  purely  local  and  special  fea- 
tures of  America,  and  often,  forgetting  his  own  scientific 
cautions,  treats  it  as  a  norm  for  democracy  in  general. 
Xor  does  he,  after  finding  his  norm,  proceed  simply  to 
examine  the  facts  and  draw  inferences  from  them.  In 
many  chapters  he  begins  by  laying  down  one  or  two 
large  principles,  he  develops  conclusions  from  them,  and 
then  he  points  out  that  the  phenomena  of  America  con- 
form to  these  conclusions.  Instead  of  drawing  the  cha- 
racter of  democracy  from  the  aspects  it  presents  in 
America,  he  arrives  at  its  character  by  a  sort  of  intuitive 
method,  and  uses  those  aspects  only  to  point  and  enforce 
propositions  he  has  already  reached.  It  is  not  demo- 
cracy in  America  he  describes,  but  his  own  theoretic 
view  of  democracy  illustrated  from  America.  He  is  ad- 
mirably honest,  never  concealing  or  consciously  evading 
a  fact  which  he  perceives  to  tell  against  his  theories. 
But  being  already  prepossessed  by  certain  abstract 
principles,  facts  do  not  fall  on  his  mind  like  seeds  on 
virgin  soil.  He  is  struck  by  those  which  accord  with,  he 
is  apt  to  ignore  those  which  diverge  from,  his  preconcep- 
tions. Like  all  deductive  reasoners,  he  is  peculiarly  ex- 
posed to  the  danger  of  pressing  a  principle  too  far,  of 
seeking  to  explain  a  phenomenon  by  one  principle  only 
when  it  is  perhaps  the  result  of  an  accidental  concur- 
rence of  several  minor  causes.  The  scholasticism  we  ob- 
serve in  him  is  due  partly  to  this  deductive  habit,  partly 
to  his  want  of  familiarity  with  the  actualities  of  politics. 
An  instance  of  it  appears  in  his  tendency  to  overestimate 
the  value  of  constitutional  powers  and  devices,  and  to 
forget  how  often  they  are  modified,  almost  reversed,  in 
practice  by  the  habits  of  those  who  use  them.  Though 
no  one  has  more  judiciously  warned  us  to  look  to  the 
actual  working  of  institutions  and  the  ideas  of  the  men 
who  work  them  rather  than  to  their  letter,  he  has  him- 


HAMILTON  AND   TOCQUEVILLE  323 

self  failed  to  observe  that  the  American  Constitution 
tends  to  vary  in  working  from  its  legal  theory,  and  the 
name  Legislature  has  prevented  him,  like  so  many  other 
foreign  observers,  from  seeing  in  the  English  Parlia- 
ment an  executive  as  well  as  a  law-making  body. 

In  saying  that  he  did  not  know  England,  I  fully  admit 
that  his  knowledge  of  that  country  and  its  free  govern- 
ment was  far  beyond  the  knowledge  of  most  cultivated 
foreigners.  He  had  studied  its  history  and  had  gathered 
from  his  reading  the  sentiments  of  its  aristocracy  and 
of  its  literary  men.  But  he  did  not  know  the  ideas  and 
habits  of  the  English  middle  class,  with  whom  the  Ameri- 
cans of  his  time  might  better  have  been  compared,  and 
he  was  not  familiar — as  how  could  a  stranger  be? — 
with  the  details  of  English  politics  and  the  working  of 
the  English  judicial  system.  Hence  he  has  failed  to 
grasp  the  substantial  identity  of  the  American  people 
with  the_Knj£TTsh\  He  perceives  that  there  are  many 
and  close  resemblances,  and  traces  much  that  is  Ameri- 
can to  an  English  source.  He  has  seen  and  described 
with  perfect  justness  and  clearness  the  mental  habits  of 
the  English  and  American  lawyer  as  contrasted  with 
those  of  the  French  lawyer.  But  he  has  not  grasped,  as 
perhaps  no  one  but  an  Englishman  or  an  American  can 
grasp,  the  truth  thatuhe  American  people  of  1830  was 
a  branch  of  the  English  people,  modified  in  some  direc- 
tions by  the  circumstances  of  its  colonial  life  and  its 
more  popular  government,  but  in  essentials  the  same. 
Hence  much  that  was  merely  English  appeared  to 
Tocqueville  to  be  American  or  democratic^  The  func- 
tions of  the  judges,  for  instance,  in  expounding  the  Con- 
stitution (whether  of  the  Federation  or  of  a  State)  and 
disregarding  a  statute  which  conflicts  therewith,  the  re- 
sponsibility of  an  official  to  the  ordinary  courts  of  the 
land,  the  co-existence  of  laws  of  a  higher  and  lower 
degree  of  authority,  seem  to  him  to  be  novel  and  brilliant 
inventions  instead  of  mere  instances  of  general  doctrines 
of  English  law,  adapted  to  the  circumstances  of  a  colony 


324  HAMILTON    IND   TOCQVETILLB 

dependent  on  a  home  Government,  or  of  a  State  partially 
subordinated  to  a  Federal  Government.  The  absence 
of  what  the  French  call  '  Administration,'  and  the  dis- 
position to  leave  people  to  themselves,  which  strike  him, 
would  not  surprise  an  Englishman  accustomed  to  the  like 
freedom.  Much  that  he  remarks  in  the  mental  habits  of 
the  ordinary  American,  his  latent  conservatism  for  in- 
stance, his  indifference  to  amusement  as  compared  with 
material  comfort,  his  commercial  eagerness  and  ten- 
dency to  take  a  commercial  view  of  all  things,  might 
have  been  just  as  well  remarked  of  the  ordinary  middle- 
class  Englishman,  and  had  nothing  to  do  with  a  demo- 
cratic government.  Other  features,  which  he  ascribes 
to  this  last-named  cause,  such  as  habits  of  easy  social 
intercourse,  the  disposition  to  prize  certain  particular 
virtues,  the  readiness  to  give  mutual  help,  are  equally 
attributable  to  the  conditions  of  life  that  existed  among 
settlers  in  a  wild  country  where  few  persons  were  raised 
by  birth  or  wealth  above  their  fellows,  and  every  one  had 
need  of  the  aid  of  others — conditions  whose  results  re- 
mained in  the  temper  of  the  people  even  when  the  com- 
munity had  passed  into  another  phase,  a  phase  in  which 
inequalities  of  wealth  were  already  marked,  and  tempta- 
tions had  begun  to  appear  which  did  not  beset  the  Puri- 
tans of  the  seventeenth  century. 

It  is  no  reproach  to  this  great  author  that  France 
formed  to  him  the  background  of  every  picture  whose 
foreground  was  the  New  World.  He  tells  us  frankly  in 
the  Introduction  that  the  phenomena  of  social  equality, 
as  they  existed  in  France,  and  the  political  consequences 
to  be  expected  from  them,  filled  his  mind  when  he  ex- 
amined the  institutions  of  America ;  he  hoped  to  find 
there  lessons  by  which  France  might  profit :  '  J'ai  voulu 
y  trouver  des  enseignements  dont  nous  puissions  pro- 
fiter.'  But  with  this  purpose  before  him,  he  could  hardly 
avoid  laying  too  much  stress  on  points  which  seemed 
to  have  instruction  for  his  own  countrymen,  and  from 
fancying  those  things  to  be  abnormal,  or  at  least  spe- 


HAMILTON  AND  TOCQUEVILLE  325 

daily  noteworthy,  which  stood  contrasted  with  the  cir- 
cumstances of  France.  Tocqueville  is,  among  eminent 
French  writers,  one  of  the  least  prone  to  assume  the 
ways  and  ideas  of  his  own  country  to  be  the  rule,  and 
those  of  another  country  the  exception ;  yet  even  in  him 
the  tendency  lurks.  There  is  more  than  a  trace  of  it  in 
his  surprise  at  the  American  habit  of  using  without  abus- 
ing political  associations,  and  at  the  disposition  of 
Legislatures  to  try  experiments  in  legislation,  a  disposi- 
tion which  struck  him  chiefly  by  its  contrast  with  the  im- 
mutability which  the  Code  of  the  First  Empire  seemed 
to  have  stamped  upon  the  private  law  of  France. 

His  constant  reference  to  France  goes  deeper  than 
the  method  of  the  book.  It  determines  his  scope  and 
aim.  The  Democracy  in  America  is  not  so  much  a  politi- 
cal study  as  a  work  of  edification.  It  is  a  warning  to 
France  of  the  need  to  adjust  her  political  institutions  to 
her  social  condition,  and  above  all  to  improve  the  tone 
of  her  politics,  to  create  a  moral  and  religious  basis  for 
her  national  life,  to  erect  a  new  fabric  of  social  doctrine, 
in  the  place  of  that  which,  already  crumbling,  the  Revo- 
lution had  overthrown.  We  must  not,  therefore,  expect 
to  find  in  him  a  complete  description  and  criticism,  such 
as  a  German  would  have  given,  of  the  government  of 
America  in  all  its  details  and  aspects.  To  note  this  is 
not  to  complain  of  the  book.  What  Tocqueville  has  pro- 
duced is  more  artistic,  and  possibly  more  impressive 
than  such  a  description  would  have  been,  as  a  landscape 
gives  a  juster  notion  of  scenery  than  a  map.  His  book 
is  permanently  valuable,  because  its  reflections  and  ex- 
hortations are  applicable  not  merely  to  the  Frenchmen 
of  sixty-five  years  ago,  but  to  mankind  generally,  since 
they  touch  upon  failings  and  dangers  permanently  in- 
herent in  political  society.  Let  it  only  be  remembered 
that,  in  spite  of  its  scientific  form,  it  is  really  a  work  of 
art  quite  as  much  as  a  work  of  science,  and  a  work  suf- 
fused with  strong,  though  carefully  repressed,  emotion. 

The  best  illustration  I  can  give  of  these  tendencies  in 


3'2fi  HAMILTON  AND   TOCQUEYILLE 

our  author  will  be  found  in  a  comparison  of  the  first  part 
of  the  book,  published  in  1834,  and  now  included  in  the 
first  and  second  volumes  of  recent  editions,  with  the 
second  part  published  in  1840,  and  now  forming  the  third 
volume.  In  the  first  part  the  author  keeps  near  his  facts. 
Even  when  he  has  set  out  on  the  a  priori  road  he  pre- 
sently brings  his  theory  into  relation  with  American 
phenomena :  they  give  substance  to,  and  (so  to  speak) 
steady  the  theory,  while  the  theory  connects  and  illu- 
mines them.  But  in  the  second  part  (third  volume)  he 
soars  far  from  the  ground,  and  is  often  lost  in  the  clouds 
of  his  own  sombre  meditation.  When  this  part  was  writ- 
ten, the  direct  impressions  of  his  transatlantic  visit  had 
begun  to  fade  from  his  mind.  With  all  his  finesse  and 
fertility,  he  had  neither  sufficient  profundity  of  thought, 
nor  a  sufficient  ample  store  of  facts  gathered  from  his- 
tory at  large, to  enable  him  to  give  body  and  substance  to 
his  reflections  on  the  obscure  problems  wherewith  he  at- 
tempts to  deal 1.  Hence,  this  part  of  the  book  is  not  so 
much  a  study  of  American  democracy  as  a  series  of 
ingenious  and  finespun  abstract  speculations  on  the  fea- 
tures of  equality  and  its  results  on  modern  society  and 
thought,  speculations  which,  though  they  have  been 
singled  out  for  admiration  by  some  high  judges,  such  as 
Ampere  and  Laboulaye,  will  appear  to  most  readers 
overfanciful,  overconfident  in  their  effort  to  construct  a 
general  theory  applicable  to  the  infinitely  diversified 
facts  of  human  society,  and  occasionally  monotonous  in 
their  repetition  of  distinctions  without  differences  and 
generalities  too  vague,  perhaps  too  hollow,  for  practical 
use. 

How  far  do  these  defects  of  Tocqueville's  work  affect 
its  value  for  our  present  purpose,  that  of  discovering 
from  it  what  was  the  condition,  political,  social,  intel- 
lectual, of  the  United  States  in  1833,  and  what  the  forces 

1  Salnte-Beuve  remarks  of  him,  '  Tl  a  commence  a  pcnser  avant  d'avoir  rien 
;i[i|>ris  :  re  qui  fait  qu'il  a  queiquefols  pense*  creux.'  Thiers  <>ncc  said,  in  the  Cham- 
ber, '  Quand  jc  considfcrc  intuilivcmcnt,  commedirait  M.  de  Tocqueville.' 


HAMILTON  AND   TOCQUEVILLE  327 

that  were  then  at  work  in  determining  the  march  of  the 
nation  and  the  development  of  its  institutions  ? 

It  is  but  slightly  that  they  impair  its  worth  as  a  record 
of  facts.  Tocqueville  is  so  careful  and  so  unprejudiced 
an  observer  that  I  doubt  if  there  be  a  single  remark  of 
his  which  can  be  dismissed  as  either  erroneous  or  super- 
ficial. There  is  always  some  basis  for  every  statement  he 
makes.  But  the  basis  is  occasionally  too  small  for  the 
superstructure  of  inference,  speculation,  and  prediction 
which  he  rears  upon  it.  To  borrow  an  illustration  from 
chemistry,  his  analysis  is  always  right  so  far  as  it  is  quali- 
tative, sometimes  wrong  where  it  attempts  to  be  quanti- 
tative. The  fact  is  there,  but  it  is  perhaps  a  smaller  fact 
than  he  thinks,  or  a  transient  fact,  or  a  fact  whose  im- 
portance is,  or  shortly  will  be,  diminished  by  other  facts 
which  he  has  not  adequately  recognized. 

When  we  pass  from  description  to  argument  he  is  a 
less  safe  guide.  By  the  light  of  subsequent  experience 
we  can  perceive  that  he  mistook  transitory  for  perma- 
nent causes.  Many  of  the  phenomena  which  he  ascribes 
to  democracy  were  due  only  to  the  fact  that  large  for- 
tunes had  not  yet  grown  up  in  America,  others  to  the 
absence,  in  most  parts  of  the  country,  of  that  higher 
education  and  culture  which  comes  with  wealth,  leisure, 
and  the  settlement  of  society.  I  have  already  observed 
that  he  sometimes  supposes  features  of  American  poli- 
tics to  be  novel  and  democratic  which  are  really  old  and 
English ;  Xhat  he  does  not  allow  sufficiently  for  the  im- 
print which  colonial  life  had  left  on  the  habits  and  ideas 
of  the  people,  an  imprint  which,  though  it  tends  to  wear 
off  with  time,  is  yet  also  modified  into  something  which, 
while  you  may  call  it  democratic,  remains  different  from 
the  democracy  of  an  old  European  country,  and  is  not 
an  index  to  the  character  of  democracy  in  general."^ 

It  need  hardly  be  said  that  the  worth  of  a  book  like 
his  is  not  to  be  measured  by  the  number  of  flaws  which 
can  be  discovered  under  the  critic's  microscope.  Even 
a  sovereign  genius  like  Aristotle  cannot  be  expected  to 


328  HAMILTON  AXD  TOCQUETILLE 

foresee  which  of  the  influences  he  discerns  will  retain 
their  potency :  it  is  enough  if  his  view  is  more  piercing 
and  more  comprehensive  than  that  of  his  greatest  con- 
temporaries, if  his  record  shows  the  high-water  mark  of 
the  learning  and  philosophy  of  the  time.  Had  history  fal- 
sified far  more  of  Tocqueville's  predictions  than  she  has 
done,  his  work  would  still  remain  eminently  suggestive 
and  stimulating.  And  it  is  edificatory  not  merely  be- 
cause it  contains  precepts  instinct  with  the  loftiest  mo- 
rality. It  is  a  model  of  that  spirit  of  fairness  and  justice, 
that  love  of  pure  truth  which  is  conspicuously  necessary, 
and  not  less  conspicuously  difficult,  in  the  discussion, 
even  the  abstract  discussion,  of  the  problems  of  political 
philosophy.  Few  books  inspire  a  higher  respect  for 
their  writer. 

V.  Tocqueville's  View   ok   the  United  States. 

Before  we  examine  the  picture  of  the  social  and  politi- 
cal phenomena  of  America  which  Tocqueville  has  drawn, 
let  us  see  what  were  the  chief  changes  that  had  passed 
on  the  territory  of  the  Union,  on  its  material  resources, 
on  the  habits  and  ideas  of  the  people,  during  the 
forty-six  years  that  elapsed  from  the  publication  of  the 
Federalist  to  that  of  the  Democratic  en  Ameriquc. 

The  territory  of  the  United  States  had  been  extended 
to  include  the  whole  valley  of  the  Mississippi,  while  to 
the  north-west  it  stretched  across  the  Rocky  Mountains 
as  far  as  the  Pacific.  All  beyond  the  Missouri  was  still 
wilderness,  much  of  it  wholly  unexplored,  but  to  the 
east  of  the  Mississippi  there  were  now  twenty-four 
States  with  an  area  of  2,059,043  square  miles  and  a  popu- 
lation of  fourteen  millions.  The  new  Western  States, 
though  rapidly  increasing,  were  still  so  raw  as  to  exer- 
cise comparatively  little  influence  on  the  balance  of  na- 
tional power,  which  vibrated  between  the  free  Northern 
and  the  Southern  Slave  States.  Slavery  was  not  an 
immediately  menacing  question,  for  the  first  wound  it 


HAMILTON  AND   TOVQUEVILLE  329 

made  had  been  skinned  over,  so  to  speak,  by  the  Mis- 
souri Compromise  of  1820;  but  it  was  evidently  preg- 
nant with  future  trouble,  for  the  number  of  slaves  was 
rapidly  increasing,  and  the  slaveholders  were  already 
resolved  to  retain  their  political  influence  by  the  creation 
of  new  slave  States.  The  great  Federalist  party  had 
vanished,  and  the  Republican-Democratic  party,  which 
had  triumphed  over  it,  had  just  been  split  into  several 
bitterly  hostile  factions.  Questions  of  foreign  policy 
were  no  longer  urgent,  for  Europe  had  ceased  to  menace 
America,  who  had  now  no  neighbours  on  her  own  conti- 
nent except  the  British  Crown  on  the  north  and  the 
Mexican  Republic  on  the  south  and  west.  The  protec- 
tive tariff  and  the  existence  of  the  United  States  Bank- 
were  the  questions  most  agitated,  but  the  main  divid- 
ing party  lines  were  still  those  which  connected  them- 
selves with  the  stricter  or  looser  interpretation  of  the 
Federal  Constitution — that  is  to  say,  they  were  ques- 
tions as  to  the  extent  of  Federal  power  on  the  one  hand, 
as  to  the  rights  of  the  States  on  the  other.  New  Eng- 
land was  still  Puritan  and  commercial,  with  a  bias 
towards  protective  tariffs, the  South  still  agricultural, and 
in  favour  of  free  trade.  The  rule  of  the  masses  had  made 
its  greatest  strides  in  New  York,  the  first,  among  the 
older  States,  which  introduced  the  new  methods  of  party 
organization  and  which  thoroughly  democratized  her 
Constitution1.  Everywhere  property  qualifications  for 
office  or  the  electoral  franchise  were  being  abolished, 
and  even  the  judges  formerly  nominated  by  the  State 
Governor  or  chosen  by  the  State  Legislature  were  be- 
ginning to  be  elected  by  manhood  suffrage  and  for  terms 
of  years.  In  fact  a  great  democratic  wave  was  passing 
over  the  country,  sweeping  away  the  old  landmarks,  de- 
stroying the  respect  for  authority,  casting  office  and 
power  more  and  more  into  the  hands  of  the  humbler 
classes,  and  causing  the  withdrawal  from  public  life  of 
men  of  education  and  refinement.    State  feeling  was  still 

1  The  process  of  democratization  was  completed  by  the  Constitution  of  1846. 


330  HAMILTON  AND   TOCQUEVILLE 

strong,  especially  in  the  South,  and  perhaps  stronger 
than  national  feeling,  but  the  activity  of  commerce  and 
the  westward  movement  of  population  were  breaking 
down  the  old  local  exclusiveness,  and  those  who  saw 
steamboats  plying  on  the  Hudson  and  heard  that  locomo- 
tive engines  were  beginning  to  be  run  in  England,  might 
have  foreseen  that  the  creation  of  more  easy,  cheap,  and 
rapid  communications  would  bind  the  sections  of  the 
country  together  with  a  new  and  irresistible  power.  The 
time  was  one  of  great  commercial  activity  and  great  ap- 
parent prosperity ;  but  large  fortunes  were  still  few, 
while  in  the  general  pursuit  of  material  objects  science, 
learning,  and  literature  had  fallen  into  the  background. 
Emerson  was  still  a  young  Unitarian  minister,  known 
only  to  the  circle  of  his  own  friends.  Channing  was  just 
rising  into  note ;  Longfellow  and  Hawthorne,  Prescott 
and  Ticknor  had  not  begun  to  write.  Washington  Irving 
was  one  of  the  few  authors  whose  names  had  reached 
Europe.  How  disagreeable  the  manners  of  ordinary 
people  (for  one  must  of  course  except  the  cultivated 
circles  of  Boston  and  Philadelphia)  seemed  to  the  Euro- 
pean visitor  may  be  gathered  from  the  diaries  of  Richard 
Cobden  and  Sir  Charles  Lyell,  who  travelled  in  America 
a  year  or  two  after  Tocqueville.  There  was  a  good  deal 
of  ability  among  the  ruling  generation  of  statesmen — 
the  generation  of  1787  wras  just  dying  out  with  Madison 
— but  only  three  names  can  be  said  to  have  survived  in 
the  world's  memory,  the  names  of  three  party  leaders 
who  were  also  great  orators,  Clay,  Calhoun,  and 
Webster  l. 

In  those  days  America  was  a  month  from  Europe  and 
comparatively  little  affected  by  Europe.  Her  people 
walked  in  a  vain  conceit  of  their  own  greatness  and 
freedom,  and  scorned  instruction  from  the  effete  mo- 
narchies of  the  Old  World,  which  in  turn  repaid  them 

1  To  none  of  whom,  oddly  enough,  does  Tocqueville  refer.  Me  is  singularly 
sparing  in  his  referenci  i  t"  individuals,  mentioning  no  one  except  President  [ack 

•.on  for  blame  and  Livingston  (author  of  the  Louisiana  Code  and  Secretary  of 
State,  1831-3)  for  praise. 


HAMILTON  AND   TOCQUEYILLE  331 

with  contemptuous  indifference.  Neither  continent  had 
realized  how  closely  its  fortunes  were  to  be  inter- 
woven with  those  of  the  other  by  trade  and  the  move- 
ments of  population.  No  wheat,  no  cattle  were  sent 
across  the  Atlantic,  nor  had  the  flow  of  immigration 
from  Ireland,  much  less  from  Central  Europe,  as  yet 
begun. 

The  United  States  of  1834  had  made  enormous  ad- 
vances in  material  prosperity.  Already  a  great  nation, 
it  could  become  a  great  power  as  soon  as  it  cared  to 
spend  money  on  fleets  and  armies.  The  Federal  govern- 
ment had  stood  the  test  of  time  and  of  not  a  few  storms. 
Its  component  parts  knew  their  respective  functions, 
and  worked  with  less  friction  than  might  have  been  ex- 
pected. The  sense  of  national  unity,  powerfully  stimu- 
lated by  the  war  of  1812,  was  still  growing.  But  the 
level  of  public  life  had  not  risen.  It  was  now  rather 
below  than  above  that  of  average  private  society.  Even 
in  the  realm  of  morality  there  were  strange  contrasts. 
A  puritan  strictness  in  some  departments  of  conduct  and 
a  universal  recognition  of  the  sanctions  of  religion  co- 
existed in  the  North  with  some  commercial  laxity,  while 
the  semi-civilized  South,  not  less  religious  and  valuing 
itself  on  its  high  code  of  honour,  was  disgraced  by  the 
tolerance  accorded  to  duels  and  acts  of  murderous  vio- 
lence, not  to  speak  of  the  darker  evils  which  slavery 
brought  in  its  train.  As  respects  the  government  of 
States  and  cities,  democratic  doctrines  had  triumphed 
all  along  the  line.  The  masses  of  the  people  had  now 
realized  their  power,  and  entered  into  the  full  fruition  of 
it.  They  had  unlimited  confidence  in  their  wisdom  and 
virtue,  and  had  not  yet  discovered  the  dangers  incidental 
to  the  rule  of  numbers.  The  wise  elders,  or  the  philo- 
sophic minds  who  looked  on  with  distrust,  were  either 
afraid  to  speak  out,  or  deemed  it  hopeless  to  try  to  stem 
the  flowing  tide.  They  stood  aside  (as  Plato  says)  under 
the  wall  out  of  the  storm.  The  party  organizations  had 
just  begun  to  spread  their  tough  yet  flexible  network 


332  HAMILIOX   A\D   TOCQUEYILLB 

over  the  whole  country;  and  the  class  of  professional 
politicians,  at  once  the  creator  and  the  creature  of  such 
organizations,  was  already  formed.  The  offices  had, three 
years  before,  been  proclaimed  to  belong  to  the  victors 
as  spoils  of  war,  but  few  saw  to  what  consequences  this 
doctrine  was  to  lead.  I  will  not  say  that  it  was  a  period 
of  transition,  for  that  is  true  of  every  period  in  America, 
so  fast  do  events  move  even  in  the  quietest  times ;  but 
it  was  a  period  when  that  which  had  been  democratic 
theory  was  passing  swiftly  into  democratic  practice, 
when  the  seeds  sown  long  ago  by  Jefferson  had  ripened 
into  a  waving  crop,  when  the  forces  which  in  every  so- 
ciety react  against  extreme  democracy  were  unusually 
weak,  some  not  yet  developed,  some  afraid  to  resist  the 
stream. 


VI.    Tocqueviele's  Impressions  and  Prophecies. 

Let  us  see  what  were  the  impressions  which  the  Amer- 
ica of  1832  made  on  the  mind  of  Tocqueville.  I  do  not 
pretend  to  summarize  his  account,  which  every  student 
ought  to  read  for  himself,  but  shall  be  content  with  pre- 
senting the  more  salient  points  that  ought  to  be  noted 
in  comparing  1832  with  1788  on  the  one  hand,  and  1900 
on  the  other. 

He  is  struck  by  the  thoroughness  with  which  the  prin- 
ciple of  the  sovereignty  of  the  people  is  carried  out. 
Seventy  years  ago  this  principle  was  far  from  having 
obtained  its  present  ascendency  in  Western  Europe. 
In  America,  however,  it  was  not  merely  recognized  in 
theory,  but  consistently  applied  through  every  branch 
of  local,  State,  and  National  government. 

ll<-  is  impressed  by  the  greater  importance  to  ordi- 
nary citizens  of  State  government  than  of  Federal  gov- 
ernment, and  their  warmer  attachment  to  the  former 
than  to  the  latter.  The  Federal  government  seems  com- 
paratively weak,  and  in  case  of  a  conflict  between  the 


HAMILTON  AND  TOCQUEVILLE  333 

two  powers,  the  loyalty  of  the  people  would  be  given 
rather  to  the  State  1. 

He  finds  the  basis  of  all  American  government  in  the 
'commune/  i.e.  in  local  government,  the  ultimate  unit 
of  which  is  in  New  England  the  township,  in  the  South- 
ern and  Middle  States  the  county.  It  is  here  that  the 
bulk  of  the  work  of  administration  is  done,  here  that 
the  citizens  learn  how  to  use  and  love  freedom,  here  that 
the  wonderful  activity  they  display  in  public  affairs  finds 
its  chief  sphere  and  its  constant  stimulus. 

The  absence  of  what  a  European  calls  '  the  administra- 
tion '  is  remarkable.  Public  work  is  divided  up  between 
a  multitude  of  petty  and  unrelated  local  officials :  there 
is  no  '  hierarchy,'  no  organized  civil  service  with  a  sub- 
ordination of  ranks.  The  means  employed  to  keep  offi- 
cials to  their  work  and  punish  offences  are  two — fre- 
quent popular  election  and  the  power  of  invoking  the 
ordinary  courts  of  justice  to  obtain  damages  for  negli- 
gence or  unwarranted  action.  But  along  with  the  ex- 
treme 'administrative  decentralization  '  there  exists  a  no 
less  extreme  '  governmental  centralization,'  that  is  to 
say,  all  the  powers  of  government  are  collected  into  one 
hand,  that  of  the  people,  the  majority  of  the  voters.  This 
majority  is  omnipotent;  and  thus  authority  is  strong, 
capable  of  great  efforts,  capable  also  of  tyranny.  Hence 
the  value  of  local  self-government,  which  prevents  the 
abuse  of  power  by  a  central  authority :  hence  the  neces- 
sity for  this  administrative  decentralization,  which  atones 
for  its  want  of  skill  in  details  by  the  wholesome  influence 
it  exerts  on  the  character  of  the  people. 

The  judges  enjoy  along  with  the  dignity  of  their  Euro- 
pean brethren  the  singular  but  most  salutary  power  of 
'  declaring  laws  to  be  unconstitutional,'  and  thus  they 
serve  to  restrain  excesses  of  legislative  as  well  as  of  ex- 
ecutive authority. 

The  President  appears  to  our  author  to  be  a  com- 

1  His  insistence  on  this  point  makes  it  all  the  more  strange  that  he  does  not  give 
any  description  of  a  State  as  a  commonwealth,  nor  characterize  the  general  fea» 
tures  of  its  government.. 


334  HAMILTON  AND   TOCQUETILLE 

paratively  weak  official.  No  person,  no  group,  no  party, 
has  much  to  hope  from  the  success  of  a  particular  can- 
didate at  a  Presidential  election,  because  he  has  not 
much  to  give  away[!].  The  elective  system  unduly 
weakens  executive  authority,  because  a  President  who 
approaches  the  end  of  his  four  years'  term  feels  himself 
feeble,  and  dares  not  take  any  bold  step:  while  the  com- 
ing in  of  a  new  President  may  cause  a  complete  change 
of  policy.  His  re-eligibility  further  weakens  and  abases 
him,  for  he  must  purchase  re-election  by  intrigue  and  an 
unworthy  pandering  to  the  desires  of  his  party.  It  in- 
tensifies the  characteristic  fault  of  democratic  govern- 
ment, the  predominance  of  a  temporary  majority. 

The  Federal  Supreme  Court  is  the  noblest  product  of 
the  wisdom  of  those  who  framed  the  Federal  Constitu- 
tion. It  keeps  the  whole  machine  in  working  order,  pro- 
tecting the  Union  against  the  States,  and  each  part  of 
the  Federal  government  against  the  aggressions  of  the 
others.  The  strength  of  the  Federation,  naturally  a 
weak  form  of  government,  lies  in  the  direct  authority 
which  the  Federal  courts  have  over  the  individual  citi- 
zen :  while  the  action  of  these  Courts,  even  against  a 
State,  gives  less  offence  than  might  be  expected  because 
they  do  not  directly  attack  its  statutes,  but  merely,  at  the 
instance  of  an  individual  plaintiff  or  defendant,  secure  to 
him  rights  which  those  statutes  may  have  incidentally 
infringed. 

The  Federal  Constitution  is  much  superior  to  the 
State  Constitutions ;  the  Federal  Legislature,  Executive 
and  Judiciary,  are  all  of  them  more  independent  of  the 
popular  majority,  and  freer  in  their  action  than  the  cor- 
responding authorities  in  the  several  States.  Similarly 
the  Federal  government  is  better  than  those  of  the 
States,  wiser,  more  skilful,  more  consistent,  more  firm. 

The  day  of  great  parties  is  past :  there  is  now  a  feverish 
agitation  of  small  parties  and  a  constant  effort  to  create 
parties,  to  grasp  at  some  principle  or  watchword  under 
which  men  may  group  themselves,  probably  for  selfish 


HAMILTON  AND   TOCQUEVILLE  335 

ends.  Self-interest  is  at  the  bottom  of  the  parties,  yet 
aristocratic  or  democratic  sentiment  attaches  itself  to 
each  of  them,  that  is  to  say,  when  a  practical  issue  arises, 
the  old  antithesis  of  faith  in  the  masses  and  distrust  of 
the  masses  reappears  in  the  view  which  men  and  parties 
take  of  it.  The  rich  mix  little  in  politics.  Secretly  dis- 
gusted at  the  predominance  of  the  crowd,  they  treat 
their  shoemaker  as  an  equal  when  they  meet  him  on  the 
street,  but  in  their  luxurious  homes  lament  the  vulgarity 
of  public  life  and  predict  a  bad  end  for  democracy. 

Next  to  the  people,  the  greatest  power  in  the  country 
is  the  press :  yet  it  is  less  powerful  than  in  France,  be- 
cause the  number  of  journals  is  so  prodigious,  because 
they  are  so  poorly  written,  because  there  is  no  centre 
like  Paris.  Advertisements  and  general  news  occupy 
far  more  of  their  space  than  does  political  argument,  and 
in  the  midst  of  a  din  of  opposing  voices  the  ordinary 
citizen  retains  his  dull  fixity  of  opinion,  the  prejudices  of 
his  sect  or  party. 

A  European  is  surprised,  not  only  at  the  number  of 
voluntary  associations  aiming  at  public  objects,  but  at 
the  tolerance  which  the  law  accords  to  them.  They  are 
immensely  active  and  powerful,  and  do  not  threaten 
public  security  as  they  would  in  France,  because  they 
admit  themselves,  by  the  very  fact  of  their  existence,  to 
represent  a  minority  of  voters,  and  seek  to  prevail  by 
force  of  argument  and  not  of  arms. 

Universal  suffrage,  while  it  gives  admirable  stability 
to  the  government,  does  not,  as  people  in  Europe  expect 
that  it  will,  bring  the  best  men  to  the  top.  On  the  con- 
trary, the  governors  are  inferior  to  the  governed  1.  The 
best  men  do  not  seek  either  office  or  a  seat  in  the  House 
of  Representatives,  and  the  people,  without  positively 
hating  the  '  upper  classes,'  do  not  like  them ;  and  care- 

1  This  is  a  common  remark  of  visitors  to  America,  but  it  arises  from  their  mis- 
taking- the  people  they  see  in  society  for  'the  governed  '  in  general.  They  go 
carrying  introductions  to  rich  or  educated  people:  if  they  mixed  with  the  masses 
they  would  form  a  different  notion  of  '  the  governed,'  as  Tocqueville  rather  oddly 
calls  the  ordinary  citizens. 


336  HAMILTON  AND   TOCQUEVILLE 

fully  keep  them  out  of  power.  '  II  ne  craint  point  les 
grands  talents,  mais  il  les  goute  peu.' 

The  striking  inferiority  of  the  House  to  the  Senate 
is  due  to  the  fact  that  the  latter  is  a  product  of  double 
election,  and  it  is  to  double  election  that  democracies 
must  come  if  they  will  avoid  the  evils  inseparable  from 
placing  political  functions  in  the  hands  of  every  class  of 
the  people  J. 

American  magistrates  are  allowed  a  wider  arbitrary 
discretion  than  is  common  in  Europe,  because  they  are 
more  constantly  watched  by  the  sovereign  people,  and 
are  more  absolutely  at  their  mercy  2. 

Every  office  is,  in  America,  a  salaried  office ;  nor  can 
anything  be  more  conformable  to  the  spirit  of  a  demo- 
cracy. The  minor  offices  are,  relatively  to  Europe,  well 
paid,  the  higher  ones  ill  paid.  Nobody  wears  any  dress 
or  displays  any  insignia  of  office  3. 

Administration  has  both  an  unstable  and  an  unscien- 
tific character.  Few  records  are  kept  of  the  acts  of 
departments :  little  information  is  accumulated :  even 
original  documents  are  neglected.  Tocqueville  was 
sometimes  given  such  documents  in  answer  to  his 
queries,  and  told  that  he  might  keep  them.  The  con- 
duct of  public  business  is  a  hand  to  mouth,  rule  of  thumb 
sort  of  affair  4. 

Not  less  instability  reigns  in  the  field  of  legislation. 
Laws  are  being  constantly  changed ;  nothing  remains 
fixed  or  certain  5. 

I  It  is  surprising-  that  Tocqueville  should  have  supposed  this  to  be  the  cause  of 
the  excellence  he  ascribes  to  the  Senate,  considering  that  the  more  obvious,  as  well 
as  the  true,  explanation  is  to  be  found  in  the  fact  that  the  wider  powers  and  longer 
term  of  the  Senate  made  the  ablest  men  seek  entrance  to  it. 

'•'  The  only  instance  given  of  this  is  in  the  discretion  allowed  to  the  officers  of  the 
New  England  townships,  whose  functions  are,  however,  unimportant.  The  state- 
ment cannot  have  been  generally  true. 

II  This  remained  true  till  very  recent  years  as  regards  public  officials,  save  and 
except  the  Judges  of  the  Supreme  Court  when  sitting  at  Washington,  Hut  lately 
the  Supreme  Court  Judges  of  some  States  have  begun  to  wear  gowns. 

4  This  has  ceased  to  be  true  in  Federal  administration,  and  in  that  of  the  more 
advanced  States. 

8  Tocqueville  does  not  say  whether  he  intendsthis  remark  toapply  to  State  legis- 
lation only  or  to  Federal  legislation  also.  He  quotes  dicta  of  Hamilton,  Madison, 
and  Jefferson  to  the  same  effect,  but  these  testimonies,  or  most  of  them,  refer  to  a 


HAMILTON  AND   TOCQUETILLE  337 

It  is  a  mistake  to  suppose  that  democratic  govern- 
ments are  specially  economical.  They  are  parsimonious 
in  salaries,  at  least  to  the  higher  officials,  but  they  spend 
freely  on  objects  beneficial  to  the  mass  of  the  people, 
such  as  education,  while  the  want  of  financial  skill  in- 
volves a  good  deal  of  waste.  You  must  not  expect 
economy  where  those  who  pay  the  bulk  of  the  taxes  are 
a  mere  fraction  of  those  who  direct  their  expenditure. 
If  ever  America  finds  herself  among  dangers,  her  taxa- 
tion will  be  as  heavy  as  that  of  European  monarchies. 

There  is  little  bribery  of  voters,  but  many  charges 
against  the  integrity  of  politicians.  Now  the  corruption 
of  the  '  governors  '  is  worse  than  that  of  the  '  governed,' 
for  it  lowers  the  tone  of  public  morals  by  presenting 
the  spectacle  of  prosperous  turpitude. 

The  American  democracy  is  self-indulgent  and  self- 
complacent,  slow  to  recognize,  still  more  slow  to  correct, 
its  faults.  But  it  has  the  unequalled  good  fortune  of 
being  able  to  commit  reparable  errors  (la  facultc  dc  fairc 
des  f  antes  re  parables).    It  can  sin  with  impunity. 

It  is  eminently  ill-fitted  to  conduct  foreign  policy. 
Fortunately  it  has  none. 

The  benefits  which  American  society  derives  from  its 
democratic  government  are  summed  up  as  follows : — 

As  the  majority  make  the  laws,  their  general  ten- 
dency, in  spite  of  many  errors  in  detail,  is  to  benefit  the 
majority,  because  though  the  means  may  sometimes  be 
ill  chosen,  the  end  is  always  the  same.  Hence  the  coun- 
try prospers. 

Every  one  is  interested  in  the  welfare  of  the  country, 
because  his  own  welfare  is  bound  up  with  it.  This 
patriotism  may  be  only  an  enlarged  egotism,  but  it  is 
powerful  nevertheless,  for  it  is  a  permanent  sentiment, 
independent  of  transient  enthusiasms.    Its  character  ap- 

time  anterior  to  the  creation  of  the  Federal  Constitution.  If  it  is  true  that  State 
laws  were  being  constantly  changed  in  1832,  this  can  have  been  true  only  of  ad- 
ministrative statutes,  not  of  private  law  generally.  One  is  tempted  to  believe  that 
Tocqueville  was  unconsciously  comparing  America  with  France,  where  the  Code 
has  arrested  legislation  to  an  extent  surprising  to  an  English  observer. 
22 


338  HAMILTON  AND   TOCQUETILLE 

pears  in  the  childish  intolerance  of  criticism  which  the 
people  display.  They  will  not  permit  yon  to  find  fault 
with  any  one  of  their  institutions  or  habits,  not  even  if 
you  praise  all  the  rest l. 

There  is  a  profound  respect  for  every  political  right, 
and  therefore  for  every  magistrate,  and  for  the  authority 
of  the  law,  which  is  the  work  of  the  people  themselves. 
If  there  be  exceptions  to  this  respect,  they  are  to  be 
found  among  the  rich,  who  fear  that  the  law  may  be 
made  or  used  to  their  detriment. 

The  infinite  and  incessant  activity  of  public  life,  the 
responsibilities  it  casts  on  the  citizen,  the  sense  of  his 
importance  which  it  gives  him,  have  stimulated  his  whole 
nature,  and  made  him  enterprising  in  all  private  affairs 
also.  Hence,  in  great  measure,  the  industrial  prosperity 
of  the  country.  Democracy  effects  more  for  the  material 
progress  of  a  nation  than  in  the  way  of  rendering  it  great 
in  the  arts,  or  in  poetry,  or  in  manners,  or  in  elevation 
of  character,  or  in  the  capacity  for  acting  on  other  na- 
tions and  leaving  a  great  name  in  history. 

We  now  come  to  the  darker  side  of  the  picture.  In 
democracies,  the  majority  is  omnipotent,  and  in  Amer- 
ica the  evils  hence  flowing  are  aggravated  by  the  short- 
ness of  the  term  for  which  a  legislature  is  chosen,  by  the 
weakness  of  the  Executive,  by  the  incipient  disposition 
to  choose  even  the  judges  by  popular  vote,  by  the  notion 
universally  accepted  that  the  majority  must  be  right. 
The  majority  in  a  legislature  being  unchecked,  laws  are 
hastily  made  and  altered,  administration  has  no  perma- 
nence, officials  are  allowed  a  dangerously  wide  range 
of  arbitrary  authority.  There  is  no  escape  from  the 
tyranny  of  the  majority.  It  dominates  even  thought, 
forbidding,  not  indeed  by  law,  but  through  social  penal- 
ties no  less  effective  than  legal  ones,  the  expression  of 
any  opinion  displeasing  to  the  ordinary  citizen.     In  the- 

1  Every  one  knows  how  frequently  European  visitors  used  to  comment  upon 
this  American  trait.  It  is  now  much  less  noticeable  than  formerly.  I  can  even  say 
from  experience  that  it  has  sensibly  diminished  since  1870, 


HAMILTON  AND   TOCQUEYILLE  339 

ology,  even  in  philosophy,  one  must  beware  of  any  di- 
vergence from  orthodoxy.  No  one  dare  tell  an  unwel- 
come truth  to  the  people,  for  it  will  receive  nothing  but 
incense.  Such  repression  sufficiently  explains  the  ab- 
sence of  great  writers  and  of  great  characters  in  public 
life.  It  is  not  therefore  of  weakness  that  free  govern- 
ment in  America  will  ever  perish,  but  through  excess  of 
strength,  the  majority  driving  the  minority  to  despair 
and  to  arms. 

There  are,  however,  influences  which  temper  the  des- 
potism of  the  majority.  One  is  the  existence  of  a 
strong  system  of  local  self-government,  whereby  nearly 
all  administration  is  decentralized.  Another  is  the  power 
of  the  lawyers,  a  class  everywhere  disposed  to  maintain 
authority  and  to  defend  that  which  exists,  and  specially 
so  disposed  in  England  and  America  because  the  law 
which  they  study  and  practise  is  founded  on  precedents 
and  despises  abstract  reason.  A  third  exists  in  the  jury, 
and  particularly  the  jury  in  its  action  in  civil  causes,  for 
it  teaches  the  people  not  only  the  regular  methods  of 
law  and  justice,  but  respect  for  law  and  for  the  judges 
who  administer  it. 

Next  we  come  to  an  enumeration  of  the  causes  which 
maintain  republican  government.  They  are,  over  and 
above  the  constitutional  safeguards  already  discussed, 
the  following : — 

The  absence  of  neighbouring  States,  and  the  conse- 
quent absence  of  great  wars,  of  financial  crises  1,  of  in- 
vasions or  conquests.  How  dangerous  to  republics  is 
the  passion  for  military  glory  is  shown  by  the  two  elec- 
tions of  General  Jackson  to  be  President,  a  man  of 
violent  temper  and  limited  capacity,  recommended  by 
nothing  but  the  memory  of  his  victory  at  New  Orleans 
twenty  years  before  2. 

1  This  observation  seems  strange  indeed  to  any  one  who  remembers  the  com- 
mercial history  of  the  United  States  since  the  great  crisis  of  1838. 

3  Jackson's  popularity  began  with  his  military  exploit :  but  his  hold  on  the  peo- 
ple was  due  to  other  causes  also.  His  election  coincided  with  the  rise  of  the  great 
democratic  wave  already  referred  to. 


340  HAMILTON  AND  TOCQVETILLE 

The  absence  of  a  great  capital. 

The  material  prosperity  of  the  country,  due  to  its  im- 
mense extent  and  natural  resources,  which  open  a 
boundless  field  in  which  the  desire  of  gain  and  the  love 
of  independence  may  gratify  themselves  and  render  the 
vices  of  man  almost  as  useful  to  society  as  his  virtues. 
The  passions  which  really  agitate  America  are  commer- 
cial, not  political. 

The  influence  of  religion.  American  Protestantism  is 
republican  and  democratic ;  American  Catholicism  no 
less  so ;  for  Catholicism  itself  tends  to  an  equality  of  con- 
ditions, since  it  treats  all  men  alike.  The  Catholic  clergy 
are  as  hearty  republicans  as  any  others. 

The  indirect  influence  of  religion  on  manners  and  mo- 
rality. Nowhere  is  marriage  so  much  respected  and  the 
relations  of  the  sexes  so  well  ordered.  The  universal 
acceptance  of  Christianity,  an  acceptance  which  imposes 
silence  even  on  the  few  sceptics  who  may  be  supposed 
to  exist  there  as  everywhere,  steadies  and  restrains 
men's  minds.  '  No  one  ventures  to  proclaim  that  every- 
thing is  permissible  in  the  interests  of  society.  Impious 
maxim,  which  seems  to  have  been  invented  in  an  age  of 
liberty  in  order  to  give  legitimacy  to  all  tyrants  to  come.' 
The  Americans  themselves  cannot  imagine  liberty  with- 
out Christianity.  And  the  chief  cause  why  religion  is  so 
powerful  among  them  is  because  it  is  entirely  separated 
from  the  State  1. 

The  intelligence  of  the  people,  and  their  education, 
but  especially  their  practical  experience  in  working  their 
local  politics.  However,  though  everybody  has  some  ed- 
ucation, letters  and  culture  do  not  flourish.  The  Ameri- 
cans regard  literature  properly  so  called  with  disfavour: 
they  are  averse  to  general  ideas.  They  have  no  great  his- 
torian, not  a  single  poet,  legal  commentators  but  no 
publicists,  good  artisans  but  very  few  inventors [!] 

1  I  do  not  profess  to  summarize  in  these  few  lines  all  that  Tocqucville  says  of 
the  character  and  influence  of  Christianity  in  the  United  States,  for  he  devotes 
many  pa^'es  to  it,  and  they  are  anions  the  wisest  and  most  permanently  true  that 
he  has  written. 


HAMILTON  AND   TOCQUEVILLE  341 

Of  all  these  causes,  the  most  important  are  those 
which  belong  to  the  character  and  habits  of  the  people. 
These  are  infinitely  more  important  sources  of  well- 
being  than  the  laws,  as  the  laws  are  in  turn  more  im- 
portant than  the  physical  conditions  *. 

Whether  democracy  will  succeed  in  other  parts  of  the 
world  is  a  question  which  a  study  of  America  does  not 
enable  the  observer  confidently  to  answer.  Her  insti- 
tutions, however  suitable  to  her  position  in  a  world  of 
her  own,  could  not  be  transferred  bodily  to  Europe. 
But  the  peace  and  prosperity  which  the  Union  enjoys 
under  its  democratic  government  do  raise  a  strong  pre- 
sumption in  favour  of  democracy  even  in  Europe.  For 
the  passions  and  vices  which  attack  free  government 
are  the  same  in  America  as  in  Europe,  and  as  the  legis- 
lator has  overcome  many  of  them  there,  combating  envy 
by  the  idea  of  rights,  and  the  presumptuous  ignorance 
of  the  crowd  by  the  practice  of  local  government,  he 
may  overcome  them  here  in  Europe  likewise. 

One  may  imagine  institutions  for  a  democracy  other 
than  those  the  Americans  have  adopted,  and  some  of 
them  better  ones.  Since  it  seems  probable  that  the  peo- 
ples of  Europe  will  have  to  choose  between  democracy 
and  despotism,  they  ought  at  least  to  try  the  former,  and 
may  be  encouraged  by  the  example  of  America. 

A  concluding  chapter  is  devoted  to  speculations  on  the 
future  of  the  three  races  which  inhabit  the  territories  of 
the  United  States.  I  need  not  transcribe  what  he  says  of 
the  unhappy  Indian  tribes.  Their  fate  was  then  already 
certain :  the  process  which  he  saw  passing  in  Alabama 
and  Michigan  afterwards  repeated  itself  in  California 
and  Oregon. 

The  presence  of  the  blacks  is  the  greatest  evil  that 
threatens  the  United  States.  They  increase,  in  the  Gulf 
States,  faster  than  do  the  whites.    They  cannot  be  kept 

1  Like  most  of  his  contemporaries,  Tocqueville  failed  to  appreciate  the  enormous 
influence  of  physical  environment,  which  has,  however,  doubtless  increased,  so  far 
as  America  is  concerned,  through  the  scientific  discoveries  made  since  the  date  of 
his  journey. 


342  HAMILTON  AND   TOCQUEVILLE 

for  ever  in  slavery,  since  the  tendencies  of  the  modern 
world  run  strongly  the  other  way.  They  cannot  be  ab- 
sorbed into  the  white  population,  for  the  whites  will  not 
intermarry  with  them,  not  even  in  the  North  where  they 
have  been  free  for  two  generations.  Once  freed,  they 
would  be  more  dangerous  than  now,  because  they  would 
not  long  submit  to  be  debarred  from  political  rights.  A 
terrible  struggle  would  ensue.  Hence  the  Southern 
Americans,  even  those  who  regret  slavery,  are  forced  to 
maintain  it,  and  have  enacted  a  harsh  code  which  keeps 
the  slave  as  near  as  possible  to  a  beast  of  burden,  for- 
bidding him  to  be  taught  and  making  it  difficult  for  him 
to  be  manumitted.  No  one  in  America  seems  to  see  any 
solution.  The  North  discusses  the  problem  with  noisy 
inquietude.  The  South  maintains  an  ominous  silence. 
Slavery  is  evidently  economically  mischievous,  for  the 
free  States  are  far  more  prosperous :  but  the  South  holds 
to  slavery  as  a  necessity. 

As  to  the  Federal  Union,  it  shows  many  signs  of  weak- 
ness. The  States  have  most  of  the  important  powers 
of  government  in  their  hands ;  they  have  the  attachment 
of  the  people ;  they  act  with  vigour  and  promptitude, 
while  the  Federal  authority  hesitates  and  argues.  In 
every  struggle  that  has  heretofore  arisen  the  Federal 
Government  has  given  way,  and  it  possesses  neither  the 
material  force  to  coerce  a  rebellious  State  nor  a  clear 
legal  right  to  retain  a  member  wishing  to  dissolve  the 
Federal  tie.  But  although  the  Union  has  no  national 
patriotism  to  support  it  (for  the  professions  of  such 
patriotism  one  hears  in  America  are  but  lip-deep),  it  is 
maintained  by  certain  interests — those  material  interests 
which  each  part  of  the  country  has  in  remaining  politi- 
cally united  with  the  rest.  Against  these  one  finds  no 
strong  interests  making  for  material  severance,  but  one 
does  find  diversities,  not  indeed  of  opinion — for  opinions 
and  ideas  are  wonderfully  similar  over  the  whole  coun- 
try— but  of  character,  particularly  between  Northern 
and  Southern  men,  which  increase  the  chances  of  discord. 


HAMILTON  AND   TOCQUETILLE  343 

And  in  the  rapid  growth  of  the  Union  there  lies  a  real 
source  of  danger.  Its  population  doubles  every  twenty- 
two  years.  Before  a  century  has  passed  its  territory  will 
be  covered  by  more  than  a  hundred  millions  of  people 
and  divided  into  forty  States1.  Now  all  partnerships 
are  more  difficult  to  keep  together  the  more  the  number 
of  partners  increases  2.  Even  admitting,  therefore,  that 
this  hundred  millions  of  people  have  similar  interests 
and  are  benefited  by  remaining  united,  still  the  mere 
fact  that  they  will  then  form  forty  nations,  distinct  and 
unequally  powerful,  will  make  the  maintenance  of  the 
Federal  Government  only  a  happy  accident.  '  I  cannot 
believe  in  the  duration  of  a  government  whose  task  is  to 
hold  together  forty  different  peoples  spread  over  a  sur- 
face equal  to  the  half  of  Europe,  to  avoid  rivalries,  ambi- 
tions, and  struggles  among  them,  and  to  unite  the  action 
of  their  independent  wills  for  the  accomplishment  of  the 
same  plans  3.' 

The  greatest  danger,  however,  which  the  Union  incurs 
as  it  grows  is  the  transference  of  forces  which  goes  on 
within  its  own  body.  The  Northern  States  increase 
more  rapidly  than  the  Southern,  those  of  the  Mississippi 
Valley  more  rapidly  still.  Washington,  which  when 
founded  was  in  the  centre  of  the  Union,  is  now  at  one 
end  of  it.  The  disproportionate  growth  of  some  States 
menaces  the  independence  of  others.  Hence  the  South 
has  become  suspicious,  jealous,  irritable.  It  fancies  itself 
oppressed  because  outstripped  in  the  race  of  prosperity 
and  no  longer  dominant.  It  threatens  to  retire  from  a 
partnership  whose  charges  it  bears,  but  whose  profits  it 
does  not  share  4. 

Besides  the  danger  that  some  States  may  withdraw 

1  There  arc  now  forty-five,  with  a  population  of  nearly  eighty  millions. 

*  No  proof  is  given  of  this  proposition,  which  is  by  no  means  self-evident,  and 
which  has  indeed  all  the  air  of  a  premiss  laid  down  by  a  schoolman  of  the  thir- 
teenth century. 

»  He  has,  however,  nowhere  attempted  to  prove  that  the  States  deserve  to  be 
called  '  nations  '  or  '  peoples.' 

*  The  protective  tariff  was  felt  as  a  grievance  by  the  South,  being  imposed  in  the 
interest  of  the  Northern  and  Middle  States.  No  doubt,  the  North  got  more  pecu- 
niary gain  out  of  the  Union  than  the  South  did. 


344  IIAMILTOX   AM)   TOCQVFMLLE 

from  the  Union  (in  which  case  there  would  probably  be 
formed  several  federations,  for  it  is  highly  unlikely  that 
the  original  condition  of  State  isolation  would  reappear), 
there  is  the  danger  that  the  central  Federal  authority 
may  continue  to  decline  till  it  has  become  no  less  feeble 
than  was  the  old  Confederation.  Although  Americans 
fear,  or  pretend  to  fear,  the  growth  of  centralization  and 
the  accumulation  of  powers  in  the  hands  of  the  Federal 
Government,  there  can  be  little  doubt  that  the  central  au- 
thority has  been  growing  steadily  weaker,  and  is  less  and 
less  able  to  face  the  resistance  of  a  refractory  State.  The 
concessions  of  public  territory  made  to  the  States,  the 
hostility  to  the  United  States  Bank,  the  (virtual)  success 
of  South  Carolina  in  the  Nullification  struggle,  are  all 
proofs  of  this  truth.  General  Jackson,  now  (1832)  Presi- 
dent, is  at  this  moment  strong,  but  only  because  he  flat- 
ters the  majority  and  lends  himself  to  its  passions.  His 
personal  power  may  increase,  but  that  of  the  President 
declines.  '  Unless  I  am  strangely  mistaken,  the  Federal 
Government  of  the  United  States  tends  to  become  daily 
weaker ;  it  draws  back  from  one  kind  of  business  after 
another,  it  more  and  more  restricts  the  sphere  of  its 
action.  Naturally  feeble,  it  abandons  even  the  appear- 
ance of  force.  On  the  other  side,  I  think  I  perceive  that 
in  the  United  States  the  sentiment  of  independence  be- 
comes more  and  more  lively  in  the  States,  and  the  love  of 
provincial  government  more  and  more  pronounced. 
People  wish  to  keep  the  Union,  but  to  keep  it  reduced 
to  a  shadow:  they  would  like  to  have  it  strong  for  some 
purposes  and  weak  for  the  rest — strong  in  war  and  al- 
most non-existent  in  peace — forgetting  that  such  alter- 
nations of  strength  and  weakness  are  impossible.' 

Nevertheless  the  time  when  the  Federal  power  will 
be  extinguished  is  still  distant,  for  the  continuance  of 
the  Union  is  desired,  and  when  the  weakness  of  the  Gov- 
ernment is  seen  to  threaten  the  life  of  the  Union,  there 
may  be  a  reaction  in  its  favour. 

Whatever  may  be  the  future  of  the  Federation,  that 


HAMILTON  AND  TOCQUEVILLE  345 

of  republicanism  is  well  assured.  It  is  deeply  rooted 
not  only  in  the  laws,  but  in  the  habits,  the  ideas,  the 
sentiments,  even  the  religion  of  the  people.  It  is  indeed 
just  possible  that  the  extreme  instability  of  legislation 
and  administration  may  some  day  disgust  the  Americans 
with  their  present  government,  and  in  that  case  they  will 
pass  rapidly  from  republicanism  to  despotism,  not  stop- 
ping by  the  way  in  the  stage  of  limited  monarchy.  An 
aristocracy,  however,  such  as  that  of  the  old  countries 
of  Europe,  can  never  grow  up.  Democratic  equality 
will  survive,  whatever  be  the  form  which  government 
may  take. 

This  brief  summary,  which  conveys  no  impression  of 
the  elegance  and  refinement  of  Tocqueville's  reasonings, 
need  not  be  pursued  to  include  his  remarks  on  the  com- 
mercial and  maritime  greatness  of  the  United  States, 
nor  his  speculations  on  the  future  of  the  Anglo-Ameri- 
can race.  Still  less  shall  I  enter  on  the  second  part  of 
the  book,  for  (as  has  been  observed  already)  it  deals 
with  the  ideas  of  democracy  and  equality  in  a  very  ab- 
stract and  sometimes  unfruitful  way,  and  it  would  need 
a  separate  critical  study. 

But  before  passing  on  to  consider  how  far  the  United 
States  now  differs  from  the  republic  which  the  French 
philosopher  described,  we  must  pause  to  ask  ourselves 
whether  his  description  was  complete. 

It  is  a  salutary  warning  to  those  who  think  it  easy  to 
get  to  the.  bottom  of  the  political  and  social  phenomena 
of  a  nation,  to  find  that  so  keen  and  so  industrious  an 
observer  as  Tocqueville,  who  seized  with  unrivalled 
acuteness  and  described  with  consummate  art  many  of 
the  minor  features  of  American  politics,  omitted  to  no- 
tice several  which  had  already  begun  to  show  their  heads 
in  his  day,  and  have  since  become  of  the  first  importance. 
Among  these  are — 

The  system  of  party  organization.  It  was  full  grown 
in  some  States  (New  York  for  instance),  and  spreading 
quickly  through  the  rest. 


346  HAMILTON  AND   TOCQVETILLE 

The  influence  of  commercial  growth  and  closer  com- 
mercial relations  in  binding  together  different  States 
of  the  Union  and  breaking  down  the  power  of  State 
sentiment.  He  does  in  one  passage  refer  to  this  influ- 
ence, but  is  far  from  appreciating  the  enormous  force  it 
was  destined  to  exercise,  and  must  have  exercised  even 
without  railways. 

The  results  of  the  principle  proclaimed  definitely  just 
before  his  visit,  and  already  operative  in  some  places, 
that  public  office  was  to  be  bestowed  as  a  reward  for 
political  service,  and  held  only  so  long  as  the  party  which 
bestowed  it  remained  in  power. 

The  assertion  by  President  Monroe  of  the  intention 
of  the  United  States  to  regard  as  unfriendly  (i.e.  to  do 
their  best  to  resist)  any  extension  of  the  '  European 
system  '  to  the  American  Continent,  and  any  further 
colonization  thereof  or  intrusion  by  European  powers 
thereon. 

The  rise  of  the  Abolitionists  (they  had  begun  to  or- 
ganize themselves  before  1830,  and  formed  a  National 
Anti-Slavery  Society  in  1833)  and  the  intense  hostility 
they  aroused  in  the  South. 

The  growth  of  the  literary  spirit,  and  the  beginnings 
of  literary  production.  The  society  which  produced 
Washington  Irving,  Fenimore  Cooper,  Channing,  Haw- 
thorne, Emerson,  Longfellow,  Thoreau,  Prescott,  Tick- 
nor,  Margaret  Fuller,  Holmes,  Lowell,  Parkman — not 
to  add  some  almost  equally  famous  later  names — de- 
served mention  as  a  soil  whence  remarkable  fruits  might 
be  expected  which  would  affect  the  whole  nation.  Yet 
it  is  not  once  referred  to,  although  one  can  perceive  that 
Tocqueville  had  spent  some  time  in  Boston,  for  many 
of  his  views  are  evidently  due  to  the  conversations  he 
held  with  the  leading  Whigs  of  that  day  there. 

The  influence  of  money  on  politics.  It  might  surely 
have  been  foretold  that  in  a  country  with  such  resources, 
and  among  a  people  whose  restless  commercial  activity 
would  be  able  to  act  on  a  vast  scale,  great  piles  of  wealth 


HAMILTON  AND   TOCQUEVILLE  347 

would  soon  be  accumulated,  that  this  wealth  would  per- 
ceive objects  which  it  might  accomplish  by  legislative 
aid,  would  seek  to  influence  governments,  and  would 
find  ample  opportunities  for  doing  so.  But  of  the 
dangers  that  must  thence  arise  we  do  not  hear  a  word. 

VII.  Examination  of  Tocqueville's  Views. 

Such  was  the  aspect  of  the  United  States  in  1832, 
such  the  predictions  which  an  unusually  penetrating  and 
philosophic  mind  formed  of  its  future.  I  will  not  attempt 
to  inquire  how  far  the  details  of  the  picture  are  accu- 
rate, because  it  would  be  unprofitable  to  contest  state- 
ments without  assigning  one's  own  reasons,  while  to 
assign  them  would  lead  me  into  a  historical  disquisition. 
A  shorter  and  simpler  course  will  be  to  inquire  in  what 
respects  things  have  changed  since  his  time,  for  thus  we 
shall  be  in  a  position  to  discern  which  of  the  tendencies 
he  noted  have  proved  permanent,  what  new  tendencies 
have  come  into  being,  what  are  the  main  tendencies 
which  are  now  controlling  the  destinies  of  the  Republic. 

I  have  noted  at  the  end  of  last  section  the  phenomena 
which,  already  existing  in  Tocqueville's  day,  he  omitted 
to  notice  or  to  appraise  to  their  due  value.  Let  us  see 
what  time  has  brought  forward  since  his  day  to  alter 
the  conditions  of  the  problem  as  he  saw  it. 

The  great  events  that  have  befallen  since  1834  are 
these : — 

The  annexation  of  Texas  in  1845. 

The  war  with  Mexico  in  1846,  leading  to  the  enlarge- 
ment of  the  United  States  by  the  vast  territories  which 
are  now  California,  Nevada,  Utah,  Idaho,  Arizona,  and 
New  Mexico. 

The  making  of  railways  over  the  whole  country,  cul- 
minating with  the  completion  of  four  or  five  great  Trans- 
Continental  roads  (the  first  in  1869). 

The  establishment  of  lines  of  swift  ocean  steamers  be- 
tween America  and  Europe. 


348  HAMILTON  AND   TOCQUEVILLE 

The  immigration  from  Ireland  (immensely  increased 
after  the  famine  of  1846),  and  from  Germany  (beginning 
somewhat  later),  and  from  Scandinavia,  Austria-Hun- 
gary, and  Russia  (later  still). 

The  War  of  Secession,  1861-65  >  together  with  the  ex- 
tinction of  Slavery. 

The  laying  of  submarine  cables  to  Europe,  and  the 
extension  of  telegraphic  communication  over  the  whole 
Union. 

The  settlement  of  the  Alabama  claims,  an  event 
scarcely  less  important  in  American  history  than  in 
English,  because  it  greatly  diminished  the  likelihood  of 
a  war  between  the  two  countries.  In  Tocqueville's  time 
the  hatred  of  Americans  to  England  was  rancorous. 

The  growth  of  great  cities.  In  1830,  only  two  had  a 
population  exceeding  100,000.  There  are  now  (census 
of  1900)  thirty-eight  which  exceed  that  population  l. 

The  growth  of  great  fortunes,  and  of  wealthy  and 
powerful  trading  corporations  ;  the  extension  of  mining, 
especially  silver  and  gold  mining ;  the  stupendous  de- 
velopment of  speculation,  not  to  say  gambling,  in  stocks 
and  produce. 

The  growth  of  the  universities  and  of  many  kindred 
literary  and  scientific  institutions. 

The  war  with  Spain  in  1898,  and  consequent  annexa- 
tion of  Hawaii  (which  might  probably  not  have  been 
taken  but  for  naval  needs  supposed  to  have  been  dis- 
closed by  the  war),  of  Puerto  Rico,  and  of  the  Philippine 
Isles. 

These  are  events  which  have  told  directly  or  indirectly 
upon  politics.  I  go  on  to  enumerate  the  political 
changes  themselves  of  the  same  sixty-seven  years. 

Democratization  of  State  Constitutions,  total  aboli- 
tion of  property  qualifications,  choice  of  judges  (in  most 
States)  by  popular  vote  and  for  terms  of  years,  restric- 

1  In  1790  there  were  only  six  cities  with  populations  of  at  least  8,ooo.  There  are 
now  545.  The  percentage  of  urban  to  rural  population  (taking  urban  as  that  of  a 
city  of  8,000)  was  then  3.4  and  is  now  33.1. 


HAMILTON  AND  TOCQUEYILLE  349 

tions  on  the  power  of  State  Legislatures,  more  frequent 
use  of  the  popular  vote  or  so-called  Referendum1. 

Development  of  the  Spoils  System,  consequent  de- 
gradation of  the  increasingly  large  and  important  civil 
service,  both  Federal,  State,  and  Municipal. 

Perfection  and  hierarchical  consolidation,  on  nomi- 
nally representative  but  really  oligarchic  lines,  of  party 
organizations ;  consequent  growth  of  Rings  and  Bosses, 
and  demoralization  of  city  government. 

Enfranchisement  of  the  negroes  through  amendments 
to  the  Constitution. 

Intensification  of  National  (as  opposed  to  State)  sen- 
timent consequent  on  the  War  of  Secession;  passion 
for  the  national  flag;  rejection  of  the  dogmas  of  State 
sovereignty  and  right  of  nullification. 

Increased  importance  of  currency  and  other  financial 
problems :  emergence  of  industrial  questions  as  bases 
for  party  organization :  efforts  to  found  a  Labour  Party 
and  a  '  People's  Party.' 

To  these  I  add,  as  powerfully  affecting  politics,  the 
development  not  only  of  literary,  scientific  and  historical 
studies,  but  in  particular  of  a  new  school  of  publicists, 
who  discuss  constitutional  and  economic  questions  in  a 
philosophic  spirit;  closer  intellectual  relations  with  Eu- 
rope, and  particularly  with  England  and  Germany ;  re- 
sort of  American  students  to  German  Universities;  in- 
creased interest  of  the  best  class  of  citizens  in  politics; 
improved  literary  quality  of  the  newspapers  and  of  peri- 
odicals (political  and  semi-political)  generally ;  growth 
of  a  critical  and  sceptical  spirit  in  matters  of  religion 
and  philosophy;  diminished  political  influence  of  the 
clergy. 

We  may  now  ask  which  of  Tocqueville's  observations 
have  ceased  to  be  true,  which  of  his  predictions  falsified. 
I  follow  the  order  in  which  they  were  presented  in  the 
last  section. 

i  Especially  in  the  form  of  the  amendment  of  particular  provisions  of  State  Con- 
stitutions. 


350  HAMILTON  AXD   TOCQVEYILLE 

Although  the  powers  of  the  several  States  remain  in 
point  of  law  precisely  what  they  were  (except  as  regards 
the  Constitutional  amendments  presently  to  be  noticed) 
and  the  citizen  depends  as  much  now  as  then  upon  the 
State  in  all  that  relates  to  person  and  property,  to  the 
conduct  of  family  and  commercial  relations,  the  National 
or  Federal  Government  has  become  more  important  to 
him  than  it  was  then.  He  watches  its  proceedings  more 
closely,  and,  of  course,  thanks  to  the  telegraph,  knows 
them  sooner  and  more  fully.  His  patriotism  is  far  more 
national,  and  in  case  of  a  conflict  between  one  or  more 
States  and  the  Federal  power,  the  sympathies  of  the 
other  States  would  probably  be  with  the  latter. 

Local  government  has  been  maintained  in  its  com- 
pleteness, but  it  seems  to  excite  less  interest  among  the 
people.  In  the  larger  cities  it  has  fallen  into  the  hands 
of  professional  politicians,  who  have  perverted  it  into  a 
grasping  and  sordid  oligarchy. 

There  is  still,  as  compared  with  Continental  Europe, 
little  '  administration,'  though  more  than  in  Tocque- 
ville's  time.  But  the  influence  of  Federal  legislation  on 
the  business  of  the  country  is  far  greater  than  it  was,  for 
the  tariff  and  the  currency,  matters  of  increased  conse- 
quence ever  since  the  war,  are  in  its  hands. 

The  dignity  of  the  judicial  bench  has  in  most  States 
suffered  seriously  from  the  system  of  popular  election 
for  comparatively  short  terms.  In  those  States  where 
nomination  by  the  Executive  has  been  retained,  and  in 
the  case  of  the  Federal  Judges  (nominated  by  the  Presi- 
dent), the  position  is  perhaps  the  highest  permanent 
one  open  to  a  citizen. 

The  President's  authority  received  a  portentous  en- 
largement during  the  War  of  Secession,  and  although 
it  has  now  returned  to  its  normal  condition,  the  sense 
of  its  importance  has  survived.  His  election  is  contested 
with  increasing  excitement,  for  his  immense  patronage 
and  the  magnitude  of  the  issues  he  may  influence  by  his 
veto  power  give  individuals  and  parties  the  strongest 


HAMILTON  AND   TOCQUETILLE  351 

grounds  for  hope  and  fear.  Experience  has,  on  the 
whole,  confirmed  the  view  that  the  re-eligibility  of  an 
acting  President  (i.e.  the  power  of  electing  him  for  an 
immediately  succeeding  term)  might  well  be  dispensed 
with. 

The  credit  of  the  Supreme  Court  suffered  somewhat 
from  its  pro-slavery  decisions  just  before  the  war,  and 
may  possibly  have  suffered  slightly  since  in  respect  of 
its  treatment  of  the  Legal  Tender  question.  Neverthe- 
less it  remains  respected  and  influential. 

The  State  Constitutions,  nearly  all  of  which  have  been 
re-enacted  or  largely  amended  since  1834,  remain  in- 
ferior to  the  Federal  Constitution,  and  the  State  legisla- 
tures are,  of  course  (possibly  with  a  very  few  excep- 
tions in  the  New  England  States),  still  more  inferior  to 
Congress. 

Two  great  parties  reappeared  immediately  after 
Tocqueville  wrote,  and  except  for  a  brief  interval  be- 
fore the  Civil  War  when  the  Whig  party  had  practically 
expired  before  its  successor  and  representative  the  Re- 
publican party  had  come  to  maturity,  they  have  con- 
tinued to  divide  the  country,  making  minor  parties  of 
slight  consequence.  Now  and  then  an  attempt  is  made 
to  start  a  new  party  as  a  national  organization,  but  it 
rarely  becomes  strong  enough  to  maintain  itself.  The 
rich  and  educated  renewed  their  interest  in  politics  under 
the  impulse  of  the  Slavery  and  Secession  struggle. 
After  a  subsequent  interval  of  apathy  they  seem  to  be 
again  returning  to  public  life.  The  secret  murmurs 
against  democracy,  whereof  Tocqueville  speaks,  are 
confined  to  a  handful  of  fashionable  exquisites  less  self- 
complacent  now  than  they  were  in  the  days  when  they 
learnt  luxury  and  contempt  for  the  people  in  the  Paris 
of  Louis  Napoleon. 

Although  newspapers  are  better  written  than  formerly 
and  those  of  the  great  cities  travel  further  over  the  coun- 
try, the  multitude  of  discordant  voices  still  prevents  the 
people  from  being  enslaved  by  the  press,  which  however 


352  HAMILTON  AXD   TOCQUETILLE 

shows  an  alarming  capacity  for  exciting  them.  The 
habit  of  association  by  voluntary  societies  maintains 
itself. 

The  defects  of  the  professional  politicians,  a  term 
which  now  more  precisely  describes  those  whom 
Tocqueville  calls  by  the  inappropriate  European  name 
of '  the  governors,'  continue  at  least  as  marked  as  in  his 
time. 

So,  too,  the  House  of  Representatives  continues  less 
influential  than  the  Senate,  but  for  other  reasons  than 
those  which  Tocqueville  assigns,  and  to  a  less  degree 
than  he  describes.  The  Senate  has  not,  since  1880,  main- 
tained the  character  he  gives  it ;  and  the  fact  that  it  is 
still  chosen  in  the  way  which  he  commended  shows  that 
the  merits  he  ascribed  to  it  were  not  due  to  its  mode  of 
choice.  Indeed  in  the  judgement  of  most  thoughtful 
men,  popular  election  in  the  States  would  give  a  better 
Senate  than  election  by  the  State  Legislatures  now  does. 

American  magistrates  never  did  in  general  enjoy  the 
arbitrary  power  Tocqueville  ascribes  to  them.  They  as- 
suredly do  not  enjoy  it  now,  but  in  municipalities  there 
is  a  growing  tendency  to  concentrate  power,  especially 
the  appointing  power,  in  the  hands  of  one  or  a  few  offi- 
cers in  order  that  the  people  may  have  some  one  person 
on  whom  responsibility  can  be  fixed.  Such  power  is 
sometimes  very  wide,  but  it  cannot  be  called  arbitrary. 
A  few  minor  offices  are  unsalaried ;  the  salaries  of  the 
greater  ones  have  been  raised,  particularly  in  the  older 
States. 

The  methods  of  administration,  especially  of  Federal 
administration,  have  been  much  improved,  but  are  still 
behind  those  of  the  most  advanced  European  countries, 
one  or  two  departments  excepted. 

Government  is  far  from  economical.  The  war  of  the 
Rebellion  was  conducted  in  the  most  lavish  way:  the 
high  protective  tariff  raises  a  vast  revenue,  and  direct 
local  taxation  takes  more  from  the  citizen  than  in  most 
European  countries.    An  enormous  sum  is  spent  upon 


HAMILTON  AND  TOCQUEYILLE  353 

pensions  to  persons  who  purport  to  have  served  in  the 
Northern  armies  during  the  Civil  War  1. 

Congress  does  not  pass  many  public  statutes,  nor  do 
they  greatly  alter  ordinary  law  within  the  sphere  open 
to  federal  legislation.  Many  legislative  experiments  are 
tried  in  the  newer  States,  but  the  ordinary  private  law 
is  in  no  such  condition  of  mutability  as  Tocqueville  de- 
scribes. The  law  of  England  suffered  more  changes  be- 
tween 1868  and  1885  than  either  the  common  or  statute 
law  of  the  older  States  of  the  Union. 

The  respect  for  the  rights  of  others,  for  the  regular 
course  of  legal  process,  for  the  civil  magistrate,  remains 
strong;  nor  have  the  rich  (although  of  late  years  more 
threatened)  seriously  begun  to  apprehend  any  attacks 
on  them,  otherwise  than  as  stockholders  in  great  railway 
and  other  corporations. 

The  tyranny  of  the  majority  is  not  a  serious  evil  in 
the  America  of  to-day,  though  people  still  sometimes 
profess  alarm  at  it.  It  cannot  act  through  a  State  legis- 
lature so  much  as  it  may  have  done  in  Tocqueville's 
days,  for  the  wings  of  these  bodies  have  been  effectively 
clipped  by  the  newer  State  constitutions.  Faint  are  the 
traces  which  remain  of  that  intolerance  of  heterodoxy 
in  politics,  religion  or  social  views  whereon  he  dilates  2. 
Politicians  on  the  stump  still  flatter  the  crowd,  but  many 
home  truths  are  told  to  it  nevertheless  in  other  ways  and 
places,  and  the  man  who  ventures  to  tell  them  need  no 
longer  fear  social  proscription  (at  least  in  time  of  peace) 
in  the  Northern  or  Western  States,  perhaps  not  even  in 
the  Southern. 

The  Republic  came  scatheless  out  of  a  terrible  civil 
war,  and  although  the  laurels  of  the  general  who  con- 
cluded that  war  twice  secured  for  him  the  Presidency, 
they  did  not  make  his  influence  dangerous  to  freedom. 

1  In  1892  the  expenditure  on  this  head  was  $155,000,000  ;  in  1901  it  was  estimated 
at  $142,000,000. 

4  Competent  American  observers  in  Tocqueville's  own  time  thought  he  greatly 
exaggerated  this  danger.  See  a  letter  from  Jared  Sparks  printed  in  Professor 
Herbert  B.  Adams'  interesting  monograph  Jared  Sharks  and  Alexis  de  Tocquc 
villey  in  Johns  Hopkins  University  Studies,  1898. 

2% 


S54  HAMILTON  AXD   TOCQUEYILLE 

There  is  indeed  no  great  capital,  but  there  are  cities 
greater  than  most  European  capitals,  and  the  Republic 
has  not  been  imperilled  by  their  growth.  The  influence 
of  the  clergy  on  public  affairs  has  declined :  whether  or 
no  that  of  religion  has  also  been  weakened  it  is  more  dif- 
ficult to  say.  But  all  Americans  are  still  agreed  that  re- 
ligion gains  by  its  entire  detachment  from  the  State. 

The  negro  problem  remains,  but  it  has  passed  into 
a  new  and  for  the  moment  less  threatening  phase. 
Neither  Tocqueville  nor  any  one  else  then  living  could 
have  foreseen  that  manumission  would  come  as  a  war 
measure,  and  be  followed  by  the  grant  of  political  rights. 
It  is  no  impeachment  of  his  judgement  that  he  omitted 
to  contemplate  a  state  of  things  in  which  the  blacks  have 
been  made  politically  the  equals  of  the  whites,  while  in- 
ferior in  most  other  respects,  and  destined,  apparently, 
to  remain  wholly  separate  from  them.  He  was  right  in 
perceiving  that  fusion  was  not  possible,  and  that  libera- 
tion would  not  solve  the  problem,  because  it  would  not 
make  the  liberated  fit  for  citizenship.  Fit — that  is  to 
say,  as  fit  as  a  considerable  part  of  the  white  population 
— they  will  probably  in  the  long  run  become,  but  even 
then  the  social  problem  will  remain.  His  remark  that 
the  repulsion  between  the  races  in  the  South  would  pro- 
bably be  greater  under  freedom  than  under  slavery  has 
so  far  been  strikingly  verified  by  the  result. 

All  the  forces  that  made  for  the  maintenance  of  the 
Federal  Union  are  now  stronger  than  they  were  then, 
while  the  chief  force  that  opposed  it,  viz.,  the  difference 
of  character  and  habits  between  North  and  South, 
largely  produced  by  the  existence  of  slavery,  tends  to 
vanish.  Nor  does  the  growth  of  the  Union  make  the 
retention  of  its  parts  in  one  body  more  difficult.  On  the 
contrary,  the  United  States  is  a  smaller  country  now 
when  it  stretches  from  the  Bay  of  Fundy  to  the  Gulf  of 
California,  with  its  seventy-six  millions  of  people,  than 
it  was  then  with  its  thirteen  millions,  just  as  the  civilized 
world  was  larger  in  the  time  of  Herodotus  than  it  is  now, 


HAMILTON  AND   TOCQUETILLE  355 

for  it  took  twice  as  many  months  to  travel  from  Perse- 
polis  or  the  Caspian  Sea  to  the  Pillars  of  Hercules  as 
it  does  now  to  circumnavigate  the  globe,  one  was  obliged 
to  use  a  greater  number  of  languages,  and  the  journey 
was  incomparably  more  dangerous.  Before  steamboats 
plied  on  rivers,  and  trains  ran  on  railways,  three  or  four 
weeks  at  least  were  consumed  in  reaching  Missouri  from 
Maine.  Now  one  goes  in  six  days  of  easy  travelling 
right  across  the  continent. 

Nor  has  the  increased  number  of  States  bred  more 
dissensions.  The  forty-five  States  of  to-day  are  not  as 
Tocqueville  assumes,  and  this  is  the  error  which  vitiates 
his  reasonings,  forty-five  nations.  The  differences  in 
their  size  and  wealth  have  become  greater,  but  they  work 
more  harmoniously  together  than  ever  heretofore,  be- 
cause neither  the  lines  which  divide  parties  nor  the  sub- 
stantial issues  which  affect  men's  minds  coincide  with 
State  boundaries.  The  Western  States  are  now,  so  far 
as  population  goes,  the  dominant  section  of  the  Union, 
and  become  daily  more  so.  But  their  interests  link 
them  more  closely  than  ever  to  the  North  Atlantic 
States,  through  which  their  products  pass  to  Europe, 
and  the  notion  once  entertained  of  moving  the  capital 
from  Washington  to  the  Mississippi  valley  has  been 
quietly  dropped. 

VIII.  Concluding  Summary. 

Before  bidding  farewell  to  our  philosopher,  let  us 
summarize  his  conclusions. 

He  sees  in  the  United  States  by  far  the  most  success- 
ful and  durable  form  of  democratic  government  that  has 
yet  appeared  in  the  world. 

Its  merits  are  the  unequalled  measure  of  freedom, 
freedom  of  action,  but  not  of  thought,  which  it  secures 
to  the  ordinary  citizen,  the  material  and  social  benefits 
it  confers  on  him,  the  stimulus  it  gives  to  all  his  prac- 
tical faculties. 


356  HAM  1 1.  T<  >\   AND   TOCQUETILLE 

These  benefits  are  likely  to  be  permanent,  for  they 
rest  upon  the  assured  permanence  of 

Social  equality ; 

Local  self-government ; 

Republican  institutions ; 

Widely  diffused  education. 

It  is  true  that  these  benefits  would  not  have  been  at- 
tained so  quickly  nor  in  such  ample  measure  but  for  the 
extraordinary  natural  advantages  of  the  New  World. 
Nevertheless,  these  natural  advantages  are  but  subsidi- 
ary causes.  The  character  of  the  people,  trained  to  free- 
dom by  experience  and  by  religion,  is  the  chief  cause, 
their  institutions  the  second,  their  material  conditions 
only  the  third ;  for  what  have  the  Spaniards  made  of  like 
conditions  in  Central  and  South  America  x  ? 

Nevertheless,  the  horizon  is  not  free  from  clouds. 

What  are  these  clouds  ? 

Besides  slavery  and  the  existence  of  a  vast  negro 
population  they  are — 

The  conceit  and  ignorance  of  the  masses,  perpetually 
flattered  by  their  leaders,  and  therefore  slow  to  correct 
their  faults. 

The  withdrawal  from  politics  of  the  rich,  and  inferior 
tone  of  '  the  governors,'  i.e.  the  politicians. 

The  tyranny  of  the  majority,  which  enslaves  not  only 
the  legislatures,  but  individual  thought  and  speech, 
checking  literary  progress,  and  preventing  the  emer- 
gence of  great  men. 

The  concentration  of  power  in  the  legislatures  (Fede- 
ral and  State),  which  weakens  the  Executive,  and  makes 
all  laws  unstable. 

The  probable  dissolution  of  the  Federal  Union,  either 
by  the  secession  of  recalcitrant  States  or  by  the  slow  de- 
cline of  Federal  authority. 

There  is  therefore  warning  for  France  in  the  example 

1  The  |conditions  of  most  parts  of  the  tropical  regions  of  South  and  Central 
America  are  in  reality  quite  different  from  those  of  the  American  Union  taken  as 
a  whole. 


HAMILTON  AXD  TOCQUEVILLE  357 

of  America.  But  there  is  also  encouragement — and  the 
|  encouragement  is  greater  than  the  warning. 

Of  the  clouds  which  Tocqueville  saw,  one  rose  till  it 
covered  the  whole  sky,  broke  in  a  thunderstorm,  and 
disappeared.  Others  have  silently  melted  into  the  blue. 
Some  still  hang  on  the  horizon,  darkening  parts  of  the 
landscape. 

Let  us  cast  one  glance  back  at  the  course  which 
events  have  actually  taken  as  compared  with  that  which 
Hamilton  first,  and  Tocqueville  afterwards,  expected. 

The  Republic  fared  far  otherwise  than  as  Hamilton 
and  his  friends  either  hoped  or  feared.  In  this  there  is 
nothing  to  impeach  their  wisdom.  They  saw  the  dangers 
of  their  own  time,  and  like  wise  and  patriotic  men  pro- 
vided the  best  remedies  which  existing  conditions  per- 
mitted. Some  dangers  they  overcame  so  completely, 
particularly  the  financial  misdoings  of  State  legislatures, 
that  these  have  now  passed  out  of  memory.  They  could 
not  foresee  what  the  power  of  money  would  become,  be- 
cause there  was  then  little  money  in  the  country.  They 
could  not  foresee  the  astonishing  development  of  party 
machinery,  because  it  is  a  perfectly  new  thing  in  the  his- 
tory of  the  world:  and  human  imagination  never  does 
more,  at  any  rate  in  the  field  of  politics  and  sociology, 
than  body  forth  things  a  little  bigger  than,  or  in  some 
other  wise  a  little  varying  from,  what  they  have  been 
before.  It  cannot  create  something  out  of  nothing. 
Least  of  all  could  they  divine  what  the  results  would  be 
of  the  coexistence  of  the  money  power  and  the  party  ma- 
chine. Nor  did  even  Tocqueville,  writing  half  a  century 
later,  when  wealth  had  already  appeared  and  the  party 
machine  was  in  places  beginning  to  work,  perceive  what 
both  had  in  store. 

How  would  Tocqueville  amend  his  criticisms  were  he 
surveying  the  phenomena  of  to-day? 

He  would  add  to  his  praise  of  the  United  States  that 
its  people  re-established  their  government  on  firm  foun- 
dations after  a  frightful  civil  war,  that  their  army  went 


358  HAMILTON    AM)   TOCQUETILLE 

back  to  its  peaceful  occupations,  that  they  paid  off  their 
debt,  that  they  have  continued  to  secure  a  free  field  for 
an  unparalleled  industrial  development  and  to  maintain 
a  hitherto  unattained  standard  of  comfort,  that  the  level 
of  knowledge  and  intellectual  culture  has  risen  enor- 
mously. He  would  admit  that  he  had  overrated  the 
dangers  to  be  feared  from  a  tyrannical  majority  and  had 
underrated  the  strength  of  the  Union.  But  he  would 
stand  aghast,  as  indeed  all  the  best  citizens  in  the  United 
States  do  now,  at  the  mismanagement  and  corruption  of 
city  governments.  He  would  perceive  that  the  party 
organizations  have  now  become  the  controlling  force  in 
the  country,  more  important  than  the  Legislature  or 
the  Executive.  He  would  recognize  the  evils  incident 
to  the  habit  of  regarding  public  office  as  a  means  of  pri- 
vate advantage  to  its  holder  and  the  bestowal  of  it  as  a 
reward  for  party  services.  And  he  would,  while  gladly 
owning  that  the  older  forms  of  faction  had  ceased  to  be 
alarming,  note  a  new  development  which  the  spirit  of 
faction  has  taken  in  the  tendency  to  look  at  and  deal 
with  both  legislation  and  foreign  affairs  from  the  point 
of  view  of  party  advantage.  Want  of  foresight  or  in- 
sight in  those  who  direct  the  affairs  of  a  mighty  nation 
is  at  all  times  a  misfortune:  but  when  foresight  and  in- 
sight are  set  aside  for  the  sake  of  some  transitory  party 
gain,  the  results  may  be  even  more  serious. 

This,  however,  is  a  tendency  inherent  in  all  schemes 
of  government  by  party.  It  is  familiar  and  formidable 
in  European  countries  also. 


VII 

TWO    SOUTH    AFRICAN    CONSTI- 
TUTIONS ' 


I.  The  Conditions  under  which    these   Consti- 
tutions   AROSE. 

The  old  Greek  saying-,  '  Africa  is  always  bringing 
something  new  V  finds  an  unexpected  application  in  the 
fact  that  there  exist  in  South  Africa  two  Dutch  republics 
possessing  constitutions  diverse  in  type  from  any  of 
those  which  we  find  subsisting  in  other  modern  States. 
The  system  established  by  these  two  South  African  in- 
struments resembles  neither  the  English,  or  so-called 
'  Cabinet,'  system  of  government, — which  has  been  more 
or  less  imitated  by  the  other  free  countries  of  Europe, 
and  has  been  reproduced  in  the  self-governing  British 
colonies, — nor  the  American,  or  so-called  '  Presiden- 
tial,' system,  as  it  exists  in  the  United  States  and  the 
several  States  of  the  American  Union.  And  although 
it  bears  some  resemblance  to  the  constitution  of  the 
Swiss  Confederation  and  to  the  constitutions  of  the 
cantons  of  Switzerland,  this  resemblance  is  not  a  close 

1  This  Essay  was  composed  early  in  1896,  and  describes  the  Constitutions  of  the 
Orange  Free  State  and  Soutli  African  Republic  as  they  stood  in  December  1895,  the 
month  when  the  fatal  invasion  of  the  latter  Republic  by  the  police  of  the  British  S. 
Africa  Company  took  place.  I  have  left  it,  for  obvious  reasons,  substantially  un- 
changed, save  that  here  and  there  I  have  corrected  what  seemed  to  be  errors,  have 
added  one  or  two  references  to  recent  events,  and  have  explained  some  constitu- 
tional points  with  more  fullness.  In  its  original  form,  the  Essay  appeared  in  the 
Forum  in  April  1896. 

2  Aeycrai  Tis  irapoifiia  on  oti  </>e'pfi  Ai/3i'ij  ti  Kaivov.     Arist.  Hist.  Anim.  viii.  jS. 


360  TWO   SOI  Til   AFh'HAX   CO.\  STITUTIONS 

one,  and  is  evidently  not  due  to  conscious  imitation,  but 
to  a  certain  similarity  of  phenomena  suggesting  similar 
devices.  The  constitutions  of  these  two  Dutch  republics 
are  the  product,  the  pure  and  original  product,  of  Afri- 
can conditions,  having  drawn  comparatively  little  from 
the  experience  of  older  countries,  or  from  the  models 
their  schemes  of  government  afford.  Moreover,  these 
South  African  constitutions  grew  up  upon  a  perfectly 
virgin  soil.  There  was  no  pre-existing  political  organi- 
zation, such  as  the  old  feudal  politics  supplied  in  some 
countries  of  Europe,  out  of  which  these  Republics  could 
develop  themselves.  There  were  no  charters  or  guilds 
or  companies,  such  as  those  which  gave  their  earliest 
form  to  the  governments  of  several  of  the  older  Ameri- 
can States.  Nor  was  there  any  home  pattern  to  be 
copied,  as  the  British  colonies  have,  by  the  aid  of  sta- 
tutes of  the  Imperial  Parliament,  copied  the  constitution 
of  the  United  Kingdom. 

This  is  one  of  the  most  interesting  features  of  these 
Constitutions.  They  are  not  specifically  Dutch.  Neither 
are  they  English.  Nothing  is  more  uncommon  in  his- 
tory than  an  institution  starting  dc  novo,  instead  of  being 
naturally  evolved  out  of  some  earlier  form.  The  simple 
farmers  who  drafted  the  documents  which  I  propose  to 
describe,  knew  little  about  the  systems  either  of  Europe 
or  of  America.  Few  possessed  any  historical,  still  fewer 
any  legal,  knowledge.  Many  were  uneducated  men, 
though  with  plenty  of  rough  sense  and  mother  wit. 
They  would  have  liked  to  get  on  without  any  govern- 
ment, and  were  resolved  to  have  as  little  as  possible. 
Circumstances,  however,  compelled  them  to  form  some 
sort  of  organization  ;  and  in  setting  to  work  to  form  one, 
with  little  except  their  recollections  of  the  local  arrange- 
ments of  Cape  Colony  to  guide  or  to  assist  them,  they 
came  as  near  as  any  set  of  men  ever  have  come  to  the 
situation  which  philosophers  have  so  often  imagined, 
but  which  has  so  rarely  in  fact  occurred — that  of  free  and 
independent  persons  uniting  in  an  absolutely  new  social 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  361 

compact  for  mutual  help  and  defence,  and  thereby  creat- 
ing a  government  whose  authority  has  had,  and  can  have 
had,  no  origin  save  in  the  consent  of  the  governed. 

A  few  preliminary  words  are  needed  to  explain  the 
circumstances  under  which  the  constitutions  of  the 
Orange  Free  State  and  of  the  South  African  Republic 
(commonly  called  the  Transvaal)  were  drawn  up. 

As  early  as  1820  a  certain  number  of  farmers,  mostly 
of  Dutch  origin,  living  in  the  north-eastern  part  of  Cape 
Colony,  were  in  the  habit  of  driving  their  flocks  and 
herds  into  the  wilderness  north  of  the  Orange  River, 
where  they  found  good  fresh  pasture  during  and  after 
the  summer  rains.  About  1828  a  few  of  these  farmers 
established  themselves  permanently  there,  still  of  course 
remaining  subjects  of  the  British  Crown,  which  had 
acquired  Cape  Colony  first  by  conquest  and  then  by  pur- 
chase in  1806  and  1814.  In  1835-6,  however,  a  much 
greater  number  of  farmers  migrated  from  the  colony ; 
some  in  larger,  some  in  smaller  bodies.  They  had  vari- 
ous grievances  against  the  British  Government,  some 
dating  back  as  far  as  1815:  and  they  desired  to  live  by 
themselves  in  their  own  way,  untroubled  by  the  Gover- 
nors whom  it  sent  to  rule  the  country1.  Between  1835 
and  1838  a  considerable  number  of  these  emigrants 
moved  into  the  country  beyond  the  Orange  River,  some 
remaining  there,  others  pushing  still  further  to  the 
north-east  into  the  hitherto  unknown  regions  beyond 
the  Vaal  River,  while  a  third  body,  perhaps  the  largest, 
moved  down  into  what  was  then  a  thinly  peopled  Kafir 
land,  and  is  now  the  British  colony  of  Natal.  This  is 
not  the  place  in  which  to  relate  the  striking  story  of 
their  battles  with  the  Zulu  king  and  of  their  struggle  with 
the  British  Government  for  the  possession  of  Natal.  It 
is  enough  to  say  that  this  third  body  ultimately  quitted 
Natal  to  join  the  other  emigrants  north  of  the  moun- 

1  A  concise  account  of  these  grievances  and  a  sketch  of  the  subsequent  history 
of  the  emigrants  may  be  found  in  Dr.  Theal's  Story  of  South  Africa  (published  by 
Messrs.  Putnam),  and  in  my  Impressions  of  South  Africa,  chaps,  xi  and  xii.  See 
also  Dr.  Theal's  larger  History  of  the  Boers  in  South  Africa. 


362  TWO  80VTE   AFRICAN   CONSTITUTIONS 

tains ;  and  that,  after  many  conflicts  between  those  emi- 
grants and  the  native  tribes,  and  some  serious  difficulties 
with  successive  Governors  of  Cape  Colony,  the  British 
Government  finally,  by  a  Convention  signed  at  Sand 
River  in  1852,  recognized  the  independence  of  the  set- 
tlers beyond  the  Vaal  River,  while,  by  a  later  Conven- 
tion signed  at  Bloemfontein  in  1854,  it  renounced  the 
sovereignty  it  had  claimed  over  the  country  between  the 
Orange  River  and  the  Vaal  River,  leaving  the  inhabi- 
tants of  both  these  territories  free  to  settle  their  own 
future  form  of  government  for  themselves. 

These  two  Conventions  are  the  legal  and  formal 
starting-points  of  the  two  republics  in  South  Africa,  and 
from  them  the  history  of  those  republics,  as  self-govern- 
ing states,  recognized  in  the  community  of  nations  by 
international  law,  takes  its  beginning.  The  emigrant 
farmers  had,  however,  already  been  driven  by  the  force 
of  circumstances  to  establish  some  sort  of  government 
among  themselves.  As  early  as  1836  an  assembly  of  one 
of  the  largest  emigrant  groups  then  dwelling  in  the 
Orange  River  Territory,  elected  seven  persons  to  con- 
stitute a  body  with  legislative  and  judicial  power.  In 
1838  the  Natal  emigrants  established  a  Volksraad  (coun- 
cil of  the  people)  which  consisted  of  twenty-four  mem- 
bers, elected  annually,  who  met  every  three  months  and 
had  the  general  direction  of  the  affairs  of  the  commu- 
nity, acting  during  the  intervals  between  the  meetings 
by  a  small  committee  called  the  Commissie  Raad.  All 
important  measures  were,  however,  submitted  to  a 
general  meeting  called  the  Publiek,  in  which  every 
burgher  was  entitled  to  speak  and  vote.  It  was  a  pri- 
mary assembly,  like  the  Old  English  Folk  Mot,  or  the 
Landesgemeinde  of  the  older  Swiss  Cantons.  A  some- 
what similar  system  prevailed  among  the  farmers  settled 
in  the  country  beyond  the  Vaal  River.  They  too  had  a 
Volksraad,  or  sometimes — for  they  were  from  time  to 
time  divided  into  separate  and  practically  independent 
republican  communities — several  Volksraads;  and  each 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  363 

district  or  petty  republic  had  a  commandant-general. 
Their  organization  was  really  more  military  than  civil, 
and  the  commandant-general  with  his  Krygsraad  (coun- 
cil of  war),  consisting  of  the  commandants  and  field  cor- 
nets within  the  district,  formed  the  nearest  approach  to 
a  regular  executive.  I  have  unfortunately  been  unable 
to  obtain  proper  materials  for  the  internal  political  his- 
tory, if  such  a  term  can  be  used,  of  these  communities 
before  they  proceeded  to  enact  the  constitutions  to  be 
presently  described,  and  fear  that  such  materials  as  do 
exist  are  very  scanty.  But,  speaking  broadly,  it  may  be 
said  that,  in  all  the  communities  of  the  emigrant  farmers, 
supreme  power  was  deemed  to  be  vested  in  an  assembly 
of  the  whole  male  citizens,  usually  acting  through  a 
council  of  delegates,  and  that  the  permanent  officials 
were  generally  a  magistrate,  called  a  landrost,  in  each 
village,  a  field  cornet  in  each  ward,  and  a  commandant 
in  each  district.  All  these  officials  were  chosen  by  the 
people  1.  In  these  primitive  arrangements  consisted  the 
materials  out  of  which  a  constitutional  government  had 
to  be  built  up. 

From  this  point  the  history  of  the  Orange  River  Ter- 
ritory, which  by  the  Convention  of  1854  was  recognized 
as  the  Orange  Free  State,  and  that  of  the  Transvaal 
Territory  begin  to  diverge.  In  describing  the  constitu- 
tions of  the  republics,  I  take  first  that  of  the  Orange 
Free  State,  because  it  dates  from  1854,  while  the  existing 
constitution  of  the  Transvaal  is  four  years  younger,  hav- 
ing been  adopted  in  1858.  The  former  is  also  by  far  the 
simpler  and  shorter  document. 

When  the  British  Government  in  1854  voluntarily  di- 
vested itself  of  its  rights  over  the  Orange  River  Terri- 
tory, greatly  against  the  will  of  some  of  its  subjects 
there,  the  inhabitants  of  that  Territory  were  estimated 
at  15,000  Europeans,  most  of  them  of  Dutch,  the  rest  of 

1  I  am  indebted  for  most  of  these  facts  regarding  the  early  organization  of  the 
emigrants  to  Dr.  G.  M.  Thcal's  History  of  the  Boers  in  South  Africa,  a  book  of 
considerable  merit  and  interest,  which,  however,  carries  its  narrative  down  only 
to  1854. 


364  TWO  sol  Til  AFRICAN  CONSTITUTIONS 

British  origin.  (The  number  of  native  Kafirs  was  much 
larger,  but  cannot  now  be  estimated.)  The  great  ma- 
jority were  farmers,  pasturing  their  sheep  and  cattle  on 
large  farms,  but  five  small  villages  already  existed,  one 
of  which,  Bloemfontein,  has  grown  to  be  a  town  of 
5,800  people,  and  is  now  the  capital.  The  Volksraad,  or 
assembly  of  delegates  of  the  people,  framed,  and  on 
April  10,  1854,  enacted,  a  constitution  for  the  new  re- 
public. This  constitution  was  revised  and  amended  in 
1866,  and  again  in  1879,  but  the  main  features  of  the 
original  instrument  remain.  I  proceed  to  deal  with  it 
as  it  now  stands. 

II.   Constitution  of  the  Orange  Free  State. 

This  Constitution,  which  is  in  the  Dutch  language,  and 
is  called  Dc  Constitutic,  is  a  terse  and  straightforward 
document  of  sixty-two  articles,  most  of  which  are  only 
a  few  lines  in  length  1.  It  begins  by  defining  the  qualifi- 
cations for  citizenship  and  the  exercise  of  the  suffrage 
(articles  1  to  4),  and  incidentally  imposes  the  obligation 
of  military  service  on  all  citizens  between  the  ages  of 
sixteen  and  sixty.  Only  whites  can  be  citizens.  New- 
comers may  obtain  citizenship  if  they  have  resided  one 
year  in  the  state  and  have  real  property  to  the  value 
of  at  least  £150  sterling  ($750),  or  if  they  have  resided 
three  successive  years  and  have  made  a  written  promise 
of  allegiance. 

Articles  5  to  27  deal  with  the  composition  and  func- 
tions of  the  Volksraad,  or  ruling  assembly,  which  is  de- 
clared to  possess  the  supreme  legislative  authority.  It 
consists  of  representatives  (at  present  fifty-eight  in  num- 
ber), one  from  each  of  the  wards  or  Field  Cornetcies, 
and  one  from  the  chief  town  or  village  of  each  of  the  (at 
present  nineteen)  districts.     They  are  elected  for  four 

1  My  thanks  are  due  to  the  distinguished  Chief  Justice  of  the  Free  State  (Mr. 
Melius  de  Villiers)  for  much  information  kindly  furnished  to  me  regarding  this 
Constitution. 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  865 

years,  one-half  retiring  every  two  years.  Twelve  con- 
stitute a  quorum.  Every  citizen  is  eligible  who  has  not 
been  convicted  of  crime  by  a  jury  or  been  declared  a 
bankrupt  or  insolvent,  who  has  attained  the  age  of 
twenty-five  years,  and  who  possesses  fixed  (i.e.  real) 
unmortgaged  property  of  the  value  of  £500  at  least. 

The  Volksraad  is  to  meet  annually  in  May,  and  may 
be  summoned  to  an  extra  session  by  its  chairman,  as 
also  by  the  President  (§  34),  or  by  the  President  and  the 
Executive  Council  (§  45). 

The  Volksraad  has  power  to  depose  the  President  if 
insolvent  or  convicted  of  crime,  and  may  also  itself  try 
him  on  a  charge  of  treason^  bribery,  or  other  grave 
offence;  but  the  whole  Volksraad  must  be  present  or 
have  been  duly  summoned,  and  a  majority  of  three  to 
one  is  required  for  conviction.  The  sentence  shall  in 
these  cases  extend  only  to  deposition  from  office  and 
disqualification  for  public  service  in  future,  a  President 
so  deposed  being  liable  to  further  criminal  proceedings 
before  the  regular  courts. 

The  votes  of  members  of  the  Volksraad  shall  be  re- 
corded on  a  demand  by  one-fifth  of  those  present.  The 
sittings  are  to  be  public,  save  where  a  special  cause  for 
a  secret  sitting  exists. 

The  Volksraad  shall  make  no  law  restricting  the  right 
of  public  meeting  and  petition. 

It  shall  concern  itself  with  the  promotion  of  religion 
and  education. 

It  shall  promote  and  support  the  Dutch  Reformed 
Church. 

It  may  alter  the  constitution,  but  only  by  a  majority 
of  three-fifths  of  the  votes  in  two  consecutive  annual 
sessions. 

It  has  power  to  regulate  the  administration  and 
finances,  levy  taxes,  borrow  money,  and  provide  for 
the  public  defence. 

Articles  28  to  41  deal  with  the  choice  and  functions 
of  the  President  of  the  state. 


366  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

He  is  to  be  elected  by  the  whole  body  of  citizens, 
the  Yolksraad,  however,  recommending  one  or  more 
persons  to  the  citizens  l. 

He  is  chosen  for  five  years  and  is  re-cligible. 

He  is  the  head  of  the  executive,  charged  with  the 
supervision  and  regulation  of  the  administrative  depart- 
ments and  public  service  generally,  and  is  responsible 
to  the  Volksraad,  his  acts  being  subject  to  an  appeal  to 
that  body.  He  is  to  report  annually  to  the  Volksraad, 
to  assist  its  deliberations  by  his  advice,  but  without  the 
right  of  voting,  and,  if  necessary,  to  propose  bills.  He 
makes  appointments  to  public  offices,  and  may  fill  va- 
cancies that  occur  when  the  Volksraad  is  not  sitting,  but 
his  appointments  require  its  confirmation.  (Such  con- 
firmation has  been  hardly  ever,  if  ever,  refused.)  He 
may  also  suspend  public  functionaries,  but  dismissal  ap- 
pears to  require  the  consent  of  the  Volksraad. 

Articles  42  to  46  deal  with  the  Executive  Council.  It 
consists  of  five  members,  besides  the  State  President, 
who  is  ex-officio  chairman,  with  a  deciding  or  overriding 
vote  (bcstisscndc  stem).  Of  these  five,  one  is  the  landrost 
(magistrate)  of  Bloemfontein,  another  the  State  Secre- 
tary, both  these  officials  being  appointed  by  the  Presi- 
dent and  confirmed  by  the  Volksraad ;  the  remaining 
three  are  elected  by  the  Volksraad.  This  Council  ad- 
vises the  President,  but  does  not  control  his  action  in 
matters  which  the  Constitution  entrusts  to  him,  reports 
its  proceedings  annually  to  the  Volksraad,  and  has  the 
rights,  in  conjunction  with  the  President,  of  pardoning 
offenders  and  of  declaring  martial  law. 

Regarding  the  judicial  power  only  two  provisions  re- 
quire mention.  Article  48  declares  this  power  to  be  ex- 
clusively exercisable  by  the  courts  of  law  established  by 
law.  Article  49  secures  trial  by  jury  in  all  criminal 
causes  in  the  superior  courts. 

Local  government  and  military  organization,  subjects 

1  In  practice,  the  recommendation  of  the  majority  of  the  Volksraad  is  looked, 
upon  as  likely  to  ensure  the  election  of  the  person  so  recommended. 


TWO   SOUTH   AFRICAN   CONSTITUTIONS  367 

intimately  connected  in  Dutch  South  Africa,  occupy  arti- 
cles 50  to  56  inclusive. 

A  field  cornet  is  elected  by  the  citizens  of  each  ward, 
a  field  commandant  by  those  of  each  district,  in  both 
cases  from  among  themselves  *.  In  case  of  war,  all  the 
commandants  and  cornets  taken  together  elect  a  Com- 
mandant-General, who  thereupon  receives  his  instruc- 
tions from  the  President.  Those  who  elected  him  may, 
with  the  consent  of  the  President,  dismiss  him  and 
choose  another.  Every  field  cornet  and  commandant 
must  have  landed  property,  the  latter  to  the  value  of 
£200  at  least. 

Article  57  declares  Roman  Dutch  law  to  be  the  com- 
mon law  of  the  state  2. 

Articles  58  and  59  declare  that  the  law  shall  be  ad- 
ministered without  respect  of  persons  and  that  every 
resident  shall  be  held  bound  to  obey  it,  while  articles  60, 
61,  and  62  guarantee  the  rights  of  property,  of  personal 
liberty,  and  of  press  freedom. 

It  will  be  convenient  to  defer  general  criticisms  upon 
the  frame  of  government  established  by  this  Constitu- 
tion till  we  have  examined  that  of  the  sister  republic 
of  the  Transvaal,  which  agrees  with  it  in  many  re- 
spects. But  we  may  here  briefly  note,  before  passing 
further,  a  few  remarkable  features  of  the  present  instru- 
ment. 

1.  It  is  a  Rigid  constitution,  i.e.  one  which  cannot  be 
changed  in  the  same  way  and  by  the  same  authority  as 
that  whereby  the  ordinary  law  is  changed,  but  which 
must  be  changed  in  some  specially  prescribed  form — in 
this  case,  by  a  three-fourths  majority  of  the  Volksraad 
in  two  successive  sessions  3. 

2.  The  body  of  the  people  do  not  come  in  as  a  vot- 


1  In  the  earlier  days  of  Rome  the  army  elected  its  subordinate  officers. 

a  Roman  Dutch  law  is  the  common  law  all  over  South  Africa,  even  in  the  almost 
purely  English  colony  of  Natal  (though  of  course  not  in  Portuguese  or  German 
territory).  It  has  been  largely  affected,  especially  in  the  British  colonies,  by  recent 
legislation. 

3  As  to  Rigid  Constitutions,  see  Essay  IIJ. 


368  TWO   SOUTH  AFRICAN   CONSTITUTIONS 

ing  power,  save  for  the  election  of  the  President  and 
Commandant-General.  All  other  powers,  even  that 
of  amending  the  constitution,  belong  to  the  Volks- 
raad. 

3.  There  is  only  one  legislative  chamber. 

4.  The  President  has  no  veto  on  the  acts  of  the 
legislature. 

5.  The  President  has  the  right  of  sitting  in  and  ad- 
dressing the  legislature. 

6.  The  President's  Council  is  not  of  his  own  choosing, 
but  is  given  him  by  the  legislature. 

7.  The  heads  of  the  executive  departments  sit  neither 
in  the  Council  nor  in  the  legislature. 

8.  The  legislature  may  apparently  reverse  any  and 
every  act  of  the  President,  save  those  (pardon  of  offences 
and  declaration  of  martial  law)  specially  given  to  him 
and  the  Executive  Council. 

American  readers  will  have  noted  for  themselves  some 
few  points  in  this  Constitution  which  have  been  drawn 
from  that  of  the  United  States.  Others  are  said  to  have 
been  suggested  by  the  Constitution  framed  for  the 
French  Republic  in  1848.  Comparatively  few  contro- 
versies upon  the  construction  of  the  Constitution  have 
been  debated  with  any  warmth.  One,  which  gave  rise 
to  a  difference  of  opinion  between  the  Yolksraad  and 
the  Supreme  Court  of  the  state,  arose  upon  the  question 
whether  the  Volksraad  has  power  to  punish  a  citizen 
for  contempt  by  committing  him  to  prison  for  a  long 
term,  and  to  direct  the  State  Attorney  to  prosecute  him. 
The  judges  disapproved  what  they  deemed  an  uncon- 
stitutional stretching  of  authority  by  the  legislature. 
Using  the  opportunities  of  influencing  public  opinion 
which  the  delivery  of  charges  to  juries  gave  them,  they 
ultimately  so  affected  the  mind  of  the  people  that  the 
Volksraad  tacitly  retired  from  its  position,  leaving  the 
question  of  right  undetermined. 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  369 


III.  Constitution  of  the  South  African  Republic. 

The  South  African  Republic,  or  Transvaal  State  as 
it  is  popularly  called,  is  ruled  by  a  much  longer,  much 
less  clear,  and  much  less  systematically  arranged  docu- 
ment than  that  established  by  its  sister  commonwealth  1. 
A  considerable  part  of  the  contents  of  this  constitution 
is  indeed  unfit,  as  too  minute,  for  a  fundamental  instru- 
ment of  government ;  and,  whatever  the  intention  of  its 
framers  may  have  been,  it  has  not  in  fact  been  treated 
as  a  fundamental  instrument.  Whether  it  is  really  such, 
in  strict  contemplation  of  law,  is  a  question  often  dis- 
cussed in  professional  circles  in  Pretoria  and  Johannes- 
burg. I  shall  summarize  the  more  important  of  its 
provisions — they  occupy  two  hundred  and  thirty-two 
articles — and  endeavour  therewith  to  present  an  outline 
of  the  frame  of  government  which  they  establish. 

The  Grondwet  (Ground-law)  or  Constitution  was 
drafted  by  a  committee  of  an  assembly  of  delegates  and 
approved  by  the  assembly  itself  in  February,  1858.  It 
is  in  Dutch,  but  has  been  translated  into  English  more 
than  once. 

Article  6  declares  the  territory  of  the  republic  open  to 
every  stranger  who  submits  himself  to  the  laws — a  pro- 
vision noteworthy  in  view  of  recent  events — and  declares 
all  persons  within  the  territory  equally  entitled  to  the 
protection  of  person  and  property. 

Article  8  states,  inter  alia,  that  the  people  '  permit  the 
spread  of  the  Gospel  among  the  heathen,  subject  to 
prescribed  provisions  against  the  practice  of  fraud  and 
deception  ' ;  a  provision  upon  whose  intention  light  is 
thrown  by  the  suspicions  felt  by  the  Boers  of  the  English 
missionaries. 

Article  9  declares  that  '  the  people  will  not  tolerate 

1  I  have  to  thank  my  friend  Mr.  J.  G.  Kotzt1,  late  Chief  Justice  of  the  South  Afri- 
can Republic,  for  information  kindly  supplied  to  me  regarding  certain  points  in 
this  Constitution. 

24 


370  TWO  SOUTH   AFRICAN  CONSTITUTIONS 

equality  between  coloured  and  white  inhabitants  either 
in  church  or  in  state  V 

Article  10  forbids  slavery  or  dealing  in  slaves. 

Article  19  grants  the  liberty  of  the  press. 

Articles  20  to  23  formerly  declared  that  the  people 
would  maintain  the  principles  of  the  doctrine  of  the 
Dutch  Reformed  Church,  as  fixed  by  the  Synod  of  Dort 
in  1618  and  1619,  that  the  Dutch  Reformed  Church  shall 
be  the  Church  of  the  State,  that  no  persons  shall  be 
elected  to  the  Volksraad  who  are  not  members  of  that 
Church,  that  no  ecclesiastical  authority  shall  be  acknow- 
ledged save  that  of  the  consistories  of  that  Church,  and 
that  no  Roman  Catholic  Churches,  nor  any  Protestant 
Churches  save  those  which  teach  the  doctrine  of  the 
Heidelberg  Catechism,  shall  be  permitted  within  the  re- 
public. But  these  archaic  provisions  were  in  the  revised 
Grondwet  of  1889  reduced  to  a  declaration  that  only 
members  of  a  Protestant  Church  should  be  elected  to 
the  Volksraad  2. 

After  these  general  provisions  we  come  to  the  frame 
of  government.  Legislation  is  committed  to  a  Volks- 
raad, '  the  highest  authority  of  the  state.'  It  is  to  consist 
of  at  least  twelve  members  (the  number  is  at  present 
twenty-four)  who  must  be  over  thirty  years  of  age  and 
possess  landed  property.  Each  district  returns  an  equal 
number  of  members.  Residence  within  the  district  is 
not  required  of  a  candidate.  The  members  were  for- 
merly elected  for  two  years,  and  one-half  retired  annu- 
ally. Their  term  was  afterwards  extended  to  four  years. 
Every  citizen  who  has  reached  the  age  of  twenty-one 
enjoys  the  suffrage  8  (persons  of  colour  are  of  course 

1  The  Boers  are  a  genuinely  religious  people,  and  read  their  Bibles.  But  they 
have  shown  little  regard  to  i  Corinthians  xii.  13  ;  Galatians  iii.  28  ;  and  Colossians 
iii.  11.  The  same  maybe  said  of  the  people  of  the  Southern  States  of  America; 
and  is  indeed  also  true  of  the  less  religious  English  both  in  South  Africa  and  in  the 
West  Indies. 

a  I  am  informed  that  even  this  restriction  was  abolished  subsequently  to  1895. 

3  The  suffrage  was  by  subsequent  enactments  restricted  as  respects  immigrants 
and  the  sons  of  immigrants  ■  and  in  1895  a  person  coming  into  the  country  could  not 
obtain  full  electoral  rights  till  after  a  period  of  twelve  years.     In  July  1899,  three 


TWO  SOUTH  AFRICAN   CONSTITUTIONS  371 

incapable  of  voting  or  of  being  elected).  The  unwork- 
able provision  of  the  old  Grondwet  that '  any  matter  dis- 
cussed shall  be  decided  by  three-fourths  of  the  votes  ' 
was  subsequently  repealed. 

Three  months  are  to  be  given  to  the  people  for  inti- 
mating to  the  Volksraad  their  opinion  on  any  proposed 
law,  '  except  laws  which  admit  of  no  delay  '  (§12),  but 
laws  may  be  discussed  whether  published  three  months 
before  their  introduction  or  introduced  during  the  ses- 
sion of  the  Volksraad  (§  43).  The  sittings  are  to  open 
and  close  with  prayer,  and  are  to  be  public,  unless  the 
chairman  or  the  President  of  the  Executive  Council 
deems  secrecy  necessary. 

If  the  high  court  of  justice  declares  the  President,  or 
any  member  of  the  Executive  Council,  or  the  Command- 
ant-General, unfit  to  fill  his  office,  the  Volksraad  shall 
remove  from  office  the  person  so  declared  unfit  and  shall 
provide  for  filling  the  vacant  office. 

The  administration,  as  well  as  the  proposal,  of  laws 
was  by  the  old  Grondwet  given  to  an  Executive  Council 
(§  13).  The  revised  instrument  vests  it  in  the  State  Presi- 
dent. The  President  is  elected  for  five  years  by  the  citi- 
zens voting  all  over  the  country.  He  must  have  attained 
the  age  of  thirty  and  be  a  member  of  a  Protestant  (for- 
merly of  the  Dutch  Reformed)  Church  (§  56).  He  is 
the  highest  officer  of  the  state,  and  appoints  all  officials. 
All  public  servants,  except  those  who  administer  justice, 
are  subordinate  to  him  and  under  his  supervision.  In 
case  of  his  death,  dismissal,  or  inability  to  act,  his  func- 
tions devolve  on  the  oldest  member  of  the  Executive 
Council  till  a  new  appointment  is  made.  The  Volksraad 
shall  dismiss  him  on  conviction  of  any  serious  offence. 
He  is  to  propose  laws  to  the  Volksraad — '  whether  ema- 
nating from  himself  or  sent  in  to  him  by  the  people  ' — 
and  support  them  in  that  body  either  personally  or 
through  a  member  of  the  Executive  Council.     He  has, 

months  before  the  war  which  broke  out  in  that  year,  the  period  was  shortened  to 
seven  years  owing  to  pressure  by  the  British  Government. 


372  TWO  SOUTH   AFRICAN  CONSTITUTIONS 

however,  no  right  to  vote  in  the  Volksraad.  He  recom- 
mends to  the  Volksraad  persons  for  appointment  to 
public  posts;  and  may  suspend  public  servants,  saving 
his  responsibility  to  the  Volksraad.  He  submits  an  esti- 
mate of  revenue  and  expenditure,  reports  on  his  own 
action  during  the  past  year  and  on  the  condition  of  the 
republic,  visits  annually  all  towns  and  villages  where  any 
public  office  exists  to  give  due  opportunity  to  the  inhabi- 
tants of  stating  their  wishes. 

The  Executive  Council  consists  of  four  official  mem- 
bers besides  the  President,  namely,  the  State  Secretary, 
the  Commandant-General,  the  Superintendent  of  Native 
Affairs,  and  the  Keeper  of  Minutes  (Notulenhouder),  and 
of  two  other  members.  All  except  the  Commandant- 
General  are  elected  by  the  Volksraad ;  the  Secretary  for 
four  years,  the  two  other  members  for  three  years.  The 
Commandant-General  is  elected  by  the  burghers  of  the 
whole  republic  for  ten  years.  All,  including  the  Presi- 
dent, are  "entitled  to  sit,  but  not  to  vote,  in  the  Volksraad. 
The  President  and  Council  carry  on  correspondence 
with  foreign  powers,  and  may  commute  or  remit  a  penal 
sentence.  A  sentence  of  death  requires  the  unanimous 
confirmation  of  the  Council.  The  President  may,  with 
the  unanimous  consent  of  the  Council,  proclaim  war  and 
publish  a  war  ordinance  summoning  all  persons  to  serve 
(§§23,66,84). 

The  provisions  relating  to  the  military  organization 
(§§93-114)  are  interesting  chiefly  as  indicating  the 
highly  militant  character  of  the  republic.  Express  pro- 
vision is  made  not  only  for  foreign  war  and  for  the 
maintenance  of  order  at  home,  but  also  for  the  cases  of 
native  insurrection  and  of  disaffection  or  civil  war  among 
the  whites.  The  officers  are  all  elected  by  the  burghers, 
the  Commandant-General  by  the  whole  body  of  burghers 
for  ten  years,  the  commandants  in  each  district  for  five 
years,  the  field  cornets  and  assistant  field  cornets  in  the 
wards  for  three  years. 

The  judiciary (§§  1 15-135)  consists  of  landrosts(magis- 


TWO  SOUTH  AFRICAN   CONSTITUTIONS  373 

trates  who  also  discharge  administrative  duties),  heem- 
raden  (local  councillors  or  assessors),  and  jurors.  The 
provisions  regarding  the  exercise  of  judicial  power  are 
minute  and  curious  in  their  way,  but  have  no  great  in- 
terest for  constitutional  purposes.  Two  landrosts  are 
proposed  to  the  people  of  the  judicial  district  by  the 
Executive  Council,  and  the  people  vote  between  these 
two.  Minute  provisions  regarding  the  oaths  to  be  taken 
by  these  officials  and  by  jurymen,  and  regarding  the 
penalties  they  may  inflict,  fill  the  remaining  articles.  A 
guarantee  for  the  independence  of  the  courts  is  to  be 
found  in  the  general  statement  in  article  15  that  '  the 
judicial  power  is  vested  in  landrosts,  heemraden,  and 
jurors,'  and  in  the  declaration  (§  57)  that  the  judicial  offi- 
cers are  '  left  altogether  free  and  independent  in  the 
exercise  of  their  judicial  power.'  A  High  Court  and  a 
Circuit  Court,  not  provided  for  in  the  old  Grondwet, 
appear  in  that  of  1889,  and  are  appointed  for  life.  The 
High  Court  consists  of  a  chief  justice  and  four  puisne 
judges. 

The  old  Grondwet  also  contained  some  curious  details 
relating  to  civil  administration  (which  was  primarily  en- 
trusted to  the  judicial  officers,  supported  by  the  com- 
mandants and  field  cornets),  and  the  revenue  of  the 
State,  which  was  intended  to  be  drawn  chiefly  from  fees 
and  licences,  the  people  having  little  disposition  to  be 
directly  taxed.  The  farm  tax  was  not  to  exceed  forty 
dollars,  and  the  poll-tax,  payable  by  persons  without  or 
with  only  one  farm,  was  fixed  at  five  dollars  annually. 
Five  dollars  was  the  payment  allowed  to  each  member 
of  the  Volksraad  for  each  day's  attendance.  Most  of 
these  provisions  have  disappeared  from  the  instrument 
of  1889.  The  salary  of  the  President  of  the  Council, 
which  had  been  fixed  at  5,333  dollars,  2  schellings,  and 
4  stuivers,  to  be  increased  as  the  revenue  increased, 
now  amounts  to  £7,000  sterling  ($35,000)  per  annum, 
besides  allowances. 

The  most  considerable  change  made  since  1889  was 


374  ril'O   SOUTH   AFRICA*    CONSTITUTIONS 

the  establishment,  in  1890,  of  a  chamber  called  the  Sec- 
ond Volksraad,  which  is  elected  on  a  more  liberal  basis 
than  the  First  Volksraad,  persons  who  have  resided 
in  the  country  for  two  years,  have  taken  an  oath  of 
allegiance  and  have  complied  with  divers  other  require- 
ments, being  admissible  as  voters.  This  assembly,  how- 
ever, enjoys  little  real  power,  for  its  competency  is  con- 
fined to  some  specified  matters,  and  to  such  others  as 
the  First  Volksraad  may  refer  to  it;  and  its  acts  may  be 
overruled  by  the  First  Raad,  whereas  the  Second  Raad 
has  no  power  of  passing  upon  the  resolutions  or  laws 
enacted  by  the  First  Raad.  The  Second  Volksraad  is, 
therefore,  not  a  second  chamber  in  the  ordinary  sense 
of  the  term,  such  as  the  Senate  in  American  States  or 
the  House  of  Lords  in  England,  but  an  appendage  to  the 
old  popular  House.  It  was  never  intended  to  exercise 
much  power,  and  was,  in  fact,  nothing  more  than  a  con- 
cession, more  apparent  than  real,  to  the  demands  of 
the  Uitlanders,  or  recent  immigrants  excluded  from 
citizenship. 

A  few  general  observations  may  be  made  on  this 
Constitution  before  we  proceed  to  examine  its  legal  cha- 
racter and  effect. 

It  was  in  its  older  form  a  crude,  untechnical  docu- 
ment, showing  little  trace  on  the  part  of  those  who 
drafted  it  either  of  legal  skill  or  of  a  knowledge  of  other 
constitutions.  The  language  was  often  vague,  and  man}' 
of  the  provisions  went  into  details  ill-fitted  for  a  funda- 
mental law. 

Although  enacted  by  and  for  a  pure  democracy,  it  was 
based  on  inequality — inequality  of  whites  and  blacks, 
inequality  of  religious  creeds.  Not  only  was  the  Dutch 
Reformed  Church  declared  to  be  established  and  en- 
dowed by  the  State,  but  Roman  Catholic  churches  were 
forbidden  to  exist,  and  no  Roman  Catholic  nor  Jew  nor 
Protestant  of  any  other  than  the  Dutch  Reformed 
Church  was  eligible  to  the  presidency,  or  to  membership 
of  the  legislature  or  executive  council.    In  its  improved 


TWO   SOUTH  AFRICAN   (OXSTITUTIONS  375 

shape  (1889)  some  of  these  faults  have  been  corrected, 
and  in  particular  the  religious  restrictions  were  reduced 
to  a  requirement  that  the  President,  the  Secretary  of 
State,  the  Landrosts  and  the  members  of  the  Volksraad 
should  belong  to  a  Protestant  Church.  The  door,  how- 
ever, remained  barred  against  persons  of  colour. 

It  contained  and  still  contains  little  in  the  nature  of 
a  Bill  of  Rights,  partly  perhaps  from  an  oversight  on 
the  part  of  its  draftsmen,  but  partly  also  owing  to  the 
assumption — which  the  early  history  of  the  republic 
amply  verified — that  the  government  would  be  a  weak 
one,  unable  to  encroach  upon  the  rights  of  private 
citizens. 

The  first  legal  question  which  arises  upon  an  exami- 
nation of  this  Constitution  relates  to  its  stability  and 
permanence.  Is  it  a  Rigid  or  a  Flexible  Constitution? 
That  is  to  say,  can  it,  like  the  constitution  of  the  Orange 
Free  State  and  that  of  the  United  States,  be  altered 
only  in  some  specially  prescribed  fashion?  Or  may  it  be 
altered  by  the  ordinary  legislature  in  the  ordinary  way, 
like  any  other  part  of  the  law? 

In  favour  of  the  former  alternative,  that  the  consti- 
tution is  a  Rigid  one,  appeal  has  been  made  not  only 
to  the  name  Grondwet  (Ground-law),  but,  which  is  of 
more  consequence,  to  some  of  its  language.  The  gene- 
ral declarations  of  the  power  of  the  people,  the  form  in 
which  they  entrust  power  to  the  legislature,  to  the  Ex- 
ecutive Council,  and  to  the  judiciary  respectively  (as 
well  as  to  the  military  authority),  look  as  if  meant  to 
constitute  a  triad  of  authorities,  similar  to  that  created 
by  the  constitutions  of  American  States,  no  one  of  which 
authorities  may  trespass  on  the  province  of  the  others. 
Some  things  seem  intended  to  be  secured  against  any 
alteration  by  the  legislature,  e.  g.,  article  9  declares  that 
'  the  people  will  not  allow  of  any  equality  between  co- 
loured and  white  inhabitants  ' ;  article  1 1  declares  that 
'  the  people  reserve  to  themselves  the  exclusive  right 
of    protecting    and    defending    the    independence    and 


376  TWO   SOITH    M-'h'U'AX    COXSTJTUTIONB 

inviolability  of  Church  and  State,  according  to  the 
laws.' 

On  the  other  hand,  it  is  argued  that  the  constitution 
must  be  deemed  to  be  a  Flexible  one,  because  it  did 
not  in  its  original  form,  and  does  not  now,  contain  any 
provision  whereby  it  may  be  altered,  otherwise  than  by 
the  regular  legislature  of  the  country  acting  according 
to  its  ordinary  legislative  methods.  One  cannot  suppose 
that  no  change  was  intended  ever  to  be  made  in  the 
Grondwet.  That  supposition  would  be  absurd  in  view 
of  the  very  minute  provisions  on  some  trivial  subjects 
which  it  contains.  No  distinction  is  drawn,  by  the  terms 
of  the  instrument,  between  these  minutiae  and  the  pro- 
visions of  a  more  general  and  apparently  permanent  na- 
ture. Ergo,  all  must  be  alterable,  and  alterable  by  the 
only  legislative  authority,  that  is  to  say,  the  Volksraad. 
This  view,  moreover,  is  the  view  which  the  legislature 
has  in  fact  taken,  and  in  which  the  people  have  certainly 
acquiesced.  Some  changes  have  been  made — such  as 
the  admission  to  the  electoral  franchise  of  persons  not 
belonging  to  the  Dutch  Reformed  Church,  the  creation 
of  a  new  supreme  court,  and  the  establishment  of  a 
Second  Volksraad — which  are  not  consistent  with  the 
Grondwet,  but  whose  validity  has  not  been  contested. 

The  difficulty  which  arises  from  the  fact  that,  whereas 
the  framers  of  the  Grondwet  appear  to  have  desired  to 
make  parts  of  their  work  fundamental  and  unchangeable, 
they  have  nevertheless  drawn  no  distinction  between 
those  parts  and  the  rest,  and  have  provided  no  specific 
security  against  the  heedless  change  of  the  weightiest 
parts,  may  be  explained  by  noting  that  they  were  not 
skilled  jurists  or  politicians,  alive  to  the  delicacy  of  the 
task  they  had  undertaken.  They  expected  that  the 
Volksraad  would  continue  to  be  of  the  same  mind  as 
they  were  then,  and  would  respect  what  they  considered 
fundamental ;  they  relied  on  the  general  opinion  of 
the  nation.  They  had,  moreover,  provided  a  method 
whereby  the  nation  should  always  have  an  opportunity 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  377 

of  expressing  its  opinion  upon  legislation,  namely,  the 
provision  (§  12)  that  the  people  should  have  a  period  of 
three  months  within  which  to  '  intimate  to  the  Volksraad 
their  views  on  any  proposed  law,'  it  being  assumed  that 
the  Volksraad  would  obey  any  such  intimation,  although 
no  means  is  provided  for  securing  that  it  will  do  so. 

This  provision  has  given  rise  to  a  curious  question. 
It  excepts  '  those  laws  which  admit  of  no  delay.'  Now 
the  Volksraad  has  in  fact  neglected  the  general  provi- 
sion, and,  instead  of  allowing  the  three  months'  period, 
has  frequently  hastily  passed  enactments  upon  which 
the  people  have  had  no  opportunity  of  expressing  their 
opinion.  Such  enactments,  which  have  in  some  instances 
purported  to  alter  parts  of  the  Grondwet  itself,  are  called 
'resolutions  '  (besluite)  as  opposed  to  laws ;  and  when  ob- 
jection has  been  taken  to  this  mode  of  legislation, 
these  resolutions  seem  to  have  been  usually  justified  on 
the  ground  of  urgency,  although  in  fact  many  of  them, 
if  important,  could  hardly  be  called  urgent.  They  have 
been  treated  as  equally  binding  with  laws  passed  in  ac- 
cordance with  the  provisions  of  the  Grondwet  (for  up 
to  1895  article  12  seems  not  to  have  been  formally  al- 
tered) ;  and  it  is  only  recently  that  their  validity  has  been 
seriously  questioned  in  the  courts.  Those  who  support 
their  validity  argue  that  in  passing  such  resolutions  as 
laws,  the  Volksraad  must  be  taken  to  have  implicitly, 
but  decisively,  repealed  the  provision  of  article  12;  or 
that,  if  this  be  not  so,  still  the  Volksraad  is  under  article 
12  the  sole  judge  of  urgency,  and  can  legally  treat  things 
as  urgent  which  are,  in  fact,  not  so ;  a  view  affirmed  by 
the  Chief  Justice  in  a  case  (State  v.  Hess)  which  arose  in 
1895.  They  add  that  even  apart  from  both  these  argu- 
ments the  unbroken  usage  of  the  Volksraad  during  a 
number  of  years,  tacitly  approved  by  the  people,  must 
be  deemed  to  have  established  the  true  construction  of 
the  Constitution,  especially  as  according  to  Roman 
Dutch  law,  usage,  whether  affirmative  or  negative,  can 
alter  written  enactments  and  could  thus  annul  the  direc- 


878  TWO   BOl'TII   AF1UCAN   CONSTITUTIONS 

tions  of  article  12.  So  it  is  written  in  the  Digest  of  Jus- 
tinian (I.  3.  32) :  '  Inveterata  consuetudo  pro  lege  custo- 
ditur  .  .  .  nam  quid  interest  suffragio  populus  vo- 
luntatem  suam  declaret  an  rebus  ipsis  et  factis?  Quare 
rectissimc  etiam  illud  receptum  est  ut  leges  non  solum 
suffragio  legis  latoris,  sed  etiam  tacito  consensu  omnium 
per  desuetudinem  abrogentur.'  To  this,  however,  it  is 
answered  that  the  principle  of  obsolescence  by  contrary 
practice  cannot  fitly  be  applied  where  a  statute  is  recent 
and  express. 

Until  1897,  the  High  Court  of  the  Transvaal  had  held 
that  the  resolutions  as  well  as  the  laws  passed  by  the 
Volksraad  were  fully  valid,  whether  or  no  they  had  been 
submitted  to  the  people  for  the  period  of  three  months, 
nor  had  the  question  of  their  being  really  urgent  been 
raised.  It  had  thus  declared  the  Grondwet  to  be  altera- 
ble by  the  Legislature,  and  so  not  a  Rigid  Constitution. 
In  that  year,  however,  in  the  case  of  Brown  v.  Lcyds,  the 
Court  held,  by  a  majority,  that  a  law  which  had  been 
passed  without  having  been  submitted  to  the  people 
during  the  period  prescribed  by  the  Grondwet  was  un- 
constitutional and  therefore  void,  thus  appearing  to  as- 
sert (for  the  language  of  the  judgement  is  not  very  clear) 
the  view  that  the  Grondwet  was  a  Rigid  Constitution, 
not  alterable  by  the  Legislature.  This  action  was 
warmly  resented  by  the  Executive  and  Legislature :  and 
the  latter  passed  a  resolution  directing  the  President  to 
require  from  every  judge  on  pain  of  dismissal  a  declara- 
tion that  he  would  in  future  recognize  as  valid  every 
law  passed  by  the  Volksraad,  and  not  again  assert  the 
so-called  '  testing  power  '  of  inquiring  whether  a  law 
conformed  to  the  provisions  of  the  Grondwet.  The 
Chief  Justice  refused  to  make  this  declaration,  and  was 
accordingly  dismissed,  much  to  the  regret  of  those  who 
remembered  his  past  services  to  the  State. 

On  a  review  of  the  whole  matter,  apart  from  the  po- 
litical passion  which  has  been  brought  into  it,  the  true 
view  would  appear  to  be  the  following,  though  I  state 


TWO   SOUTH  AFRICAN   CONSTITUTIONS  379 

it  with  the  diffidence  becoming  a  stranger  who  is  also  im- 
perfectly informed  as  to  the  constitutional  history  of  the 
republic. 

The  Grondwet  of  the  South  African  Republic,  though 
possibly  intended  by  its  framers  to  be  treated,  in  respect 
of  its  most  important  provisions,  as  a  fundamental  law 
not  to  be  altered  by  the  Volksraad  in  the  exercise  of  its 
ordinary  powers,  is  not  really  a  Rigid  constitution  but 
a  Flexible  one.  We  have  to  look  not  so  much  at  what 
the  framers  may  have  wished  as  at  what  the  language 
employed  actually  conveys  and  imports  ;  and  the  absence 
of  any  provision,  such  as  that  contained  in  the  Constitu- 
tion of  the  Orange  Free  State,  for  a  special  and  peculiar 
method  of  change,  is  decisive  upon  this  point.  An  Ameri- 
can lawyer,  accustomed  to  construe  strictly  documents 
which  contain  or  modify  powers,  might  be  inclined  to 
argue  that  the  validity  of  laws  (not  dealing  with  matters 
which  '  admit  of  no  delay  ')  which  had  been  passed  as 
mere  resolutions,  ignoring  article  12,  may  have  been 
doubtful  until  the  Volksraad  modified  that  article  by 
legislation.  But  the  Transvaal  High  Court  had  held  that 
the  question  of  urgency  was  a  question  for  the  discretion 
of  the  Volksraad ;  and  it  must  be  added  that  persons  ac- 
customed to  other  legal  systems  do  not  necessarily  pro- 
ceed upon  American  principles.  The  Swiss,  for  instance, 
make  their  legislature  the  interpreter  of  the  Constitu- 
tion for  the  purpose  of  determining  the  extent  of  legisla- 
tive power1.  Allowing  for  this,  and  remembering  that 
both  the  law  courts  and  the  whole  people  had  until  1897 
treated  the  Volksraad  as  an  absolutely  sovereign  body, 
the  action  it  took  in  asserting  its  sovereignty  need  excite 
no  surprise.  It  was  claiming  nothing  more  than  the 
powers  actually  enjoyed  by  the  British  Parliament. 
However,  although  the  Volksraad  was  merely  enforcing 
the  rights  which  it  reasonably  (and  I  think  correctly) 
conceived  itself  to  possess,  and  could  not  have  permitted 
the  majority  of  the  High  Court  to  assert  a  power  pre- 

1  Sec  Essay  III,  p.  195. 


380  TWO   SOUTH  AFRICAN   CONSTITUTIONS 

viously  unknown,  a  wiser  course  would  have  been  to 
amend  the  Constitution  in  some  way  which  would  have 
given  to  the  judiciary  a  more  assured  position  than  that 
which  had  been  secured  to  them  by  a  confessedly  crude 
and  imperfect  instrument.  It  was  through  the  confused 
language  of  the  Grondwet  that  the  whole  difficulty  arose, 
and  while  formally  declaring  that  the  Grondwet  was  not 
— as  it  certainly  was  not — a  Rigid  Constitution,  the 
Volksraad  ought  to  have  endeavoured  to  render  it  more 
suited  to  the  needs  of  a  society  which  had  grown  to  be 
different  from  that  for  which  it  had  been  originally 
enacted. 

IV.  Observations  on   the   Character   and  Working 
of  both  Constitutions. 

The  principles  of  these  Constitutions  are  highly  demo- 
cratic. They  were  intended  so  to  be.  Among  the  whites 
settled  in  these  wide  territories  there  prevailed  a  perfect 
social  equality,  a  passionate  love  of  independence,  and 
a  strong  sense  of  personal  dignity.  They  were  as  little 
influenced  by  political  theories  as  it  was  possible  for 
any  civilized  men  in  this  century  to  be.  Their  wish  for  a 
government  purely  popular,  and  indeed  for  very  little 
of  any  government  at  all,  was  due  to  their  personal  ex- 
perience and  to  the  conditions  under  which  they  found 
themselves  in  the  wilderness ;  and  one  may  doubt 
whether  they  would  have  established  a  regular  govern- 
ment but  for  the  dangers  which  threatened  them  from 
the  warlike  native  tribes.  Such  sentiments  as  I  have  de- 
scribed would  have  disposed  them,  had  they  lived  in  a 
city,  or  in  a  small  area  like  the  cantons  of  Uri  or  Ap- 
penzell  in  Switzerland,  to  have  kept  legislation  and  the 
determination  of  all  grave  affairs  in  the  hands  of  a 
general  meeting  of  the  citizens.  But  they  lived  scat- 
tered over  a  vast  wilderness,  with  no  means  of  com- 
munication save  ox-wagons  which  travel  only  some 
twelve  miles  a  day.    In  the  Orange  River  Territory  when 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  381 

it  became  a  state  there  were  probably  less  than  three 
thousand  citizens,  though  its  area  was  nearly  that  of 
England.  Hence  primary  assemblies  were  impossible, 
and  power  had  to  be  entrusted  to  a  representative  body. 

The  predominance  of  the  legislature  is  the  most  con- 
spicuous feature  of  both  these  constitutions.  The  Trans- 
vaal Volksraad  originally  made  all  the  appointments  to 
the  civil  service,  for  the  President  had  only  the  right  of 
proposing,  and  even  in  the  revised  Grondwet  of  1889 
the  Raad  retains  the  right  of  approving  or  disapproving 
the  President's  appointments.  In  both  republics  the 
Volksraad  appoints  a  majority  of  the  Executive  Council 
which  surrounds  the  President,  to  advise,  but  also  to 
watch  and  check  him.  It  has  complete  control  of  reve- 
nue and  expenditure.  It  may  change  the  constitution, 
though,  in  the  Orange  Free'  State,  only  by  a  prescribed 
majority.  The  President  has  no  veto  on  its  acts ;  nor  is 
it,  as  in  most  modern  free  countries,  divided  into  two 
chambers  likely  to  differ  from  and  embarrass  one  an- 
other. Its  vote,  which  may,  if  it  pleases,  be  a  single  vote, 
given  under  no  restrictions  but  those  of  its  own  mak- 
ing, is  decisive. 

The  comparative  feebleness  of  the  other  branches  of 
government  corresponds  to  the  overwhelming  strength 
of  the  legislature.  The  authority  of  the  judiciary  re- 
ceived from  the  first  a  somewhat  vague  recognition,  and 
its  independence  was  at  one  time,  in  the  South  African 
Republic,  seriously  threatened  by  the  executive  and 
legislature,  and  saved  only  by  the  exertions  of  the  bench 
and  bar,  which  aroused  public  opinion  on  its  behalf.  The 
later  controversy  between  the  Volksraad  and  the  Chief 
Justice  has  been  already  discussed.  In  the  Free  State 
the  Court's  claim  to  be  the  proper  and  authoritative  in- 
terpreter of  the  constitution,  which  would  be  clear  upon 
English  or  American  principles,  was  never  formally  ad- 
mitted. And  though  the  judges  are  in  both  republics 
appointed  for  life,  their  salaries  are  at  the  mercy  of  the 
legislature. 


3S2  TWO  BOUTR   AFRICAN  OONSTITUTIONB 

The  executive  head  of  the  government  has  no  doubt 
the  advantage,  as  in  an  American  State,  of  being  directly 
chosen  by  the  people,  and  not,  as  in  France,  by  the 
legislature.  But  he  has  no  veto  on  acts  of  the  legisla- 
ture, while  his  acts  can  be  overruled  by  it,  at  least  in  the 
Orange  Free  State,  for  in  the  Transvaal  this  may  be 
more  doubtful.  Its  approval  is  required  to  any  appoint- 
ments he  may  suggest.  He  is  hampered  by  an  Executive 
Council  which  he  has  not  himself  selected,  resembling 
in  this  respect  an  American  State  governor  rather  than 
the  President  of  the  Union.  It  may,  in  the  Free  State, 
try  him  and  depose  him  if  convicted.  He  has  no  military 
authority,  such  as  that  enjoyed  by  the  British  Crown 
and  its  ministers,  or  by  the  American  President,  for 
that  belongs  to  the  Commandant-General  (though  in  the 
Orange  Free  State  the  Commandant  '  receives  instruc- 
tions '  from  the  President). 

Against  all  these  sources  of  weakness  there  are 
only  two  things  to  set.  The  President  can  speak  in 
the  Volksraad,  and  he  is  re-eligible  any  number  of 
times. 

The  Executive  Council,  as  already  observed,  seems 
intended  to  restrain  the  President,  while  purporting  to 
aid  and  advise  him.  It  may  be  compared  to  the  Trivy 
Council  of  mediaeval  England,  with  the  important  dif- 
ference that  it  is  appointed,  not  by  the  executive,  but 
partly  by  the  legislature,  partly  by  the  people.  As  we 
shall  see  presently,  it  has  proved  to  be  an  unimportant 
part  of  the  machinery  of  government. 

In  all  these  points  the  two  constitutions  present  a 
close  likeness.  They  are  also  similar  in  the  recognition 
which  they  originally  gave,  and  have  not  wholly  ceased 
to  give,  to  a  state  church — an  institution  opposed  to 
democratic  ideas  in  America  and  in  the  British  Colonies 
— as  well  as  in  their  exclusion  of  persons  of  colour  from 
every  kind  of  political  right.  It  would  appear  that  upon 
this  point  there  has  never  been  any  substantial  difference 
of  opinion  in  the  two  republics.    Neither  indeed  is  there 


TWO   SOUTH   AFRICAN  CONSTITUTIONS  383 

much  difference  of  opinion  in  the  British  parts  of  South 
Africa,  for  although  the  influence  of  English  ideas  has 
been  so  far  felt  that  in  Cape  Colony  persons  of  colour 
are  permitted  to  vote,  still  the  combination  of  a  property 
qualification  with  an  educational  qualification  greatly 
restricts  their  number.  A  republican  form  of  gov- 
ernment, therefore,  does  not  necessarily  appear  to 
make  for  '  human  rights  '  in  the  American  sense  of 
that  term,  any  more  than  it  did  in  the  United  States 
in  1788. 

Speaking  generally,  these  two  Constitutions  carry  the 
principle  of  the  omnipotence  of  the  representative  cham- 
ber to  a  maximum.  This  will  be  more  clearly  seen  if  we 
compare  the  system  they  create,  first  with  the  cabinet 
system  of  Britain  and  her  self-governing  colonies,  and 
secondly  with  the  presidential  system  of  the  United 
States. 

The  main  differences  between  the  South  African 
scheme  of  government  and  the  British  may  be  briefly 
summarized. 

The  head  of  the  executive  is,  in  the  South  African  re- 
publics, chosen  directly  by  the  people,  whereas  in  Brit- 
ain and  her  colonies  the  executive  ministry  is  virtually 
chosen  by  the  legislature1,  though  nominally  by  the 
Crown  or  its  local  representative. 

In  these  republics  the  executive  cannot,  as  can  mini- 
sters under  the  British  system,  be  dismissed  by  a  vote 
of  the  legislature,  nor  on  the  other  hand  has  the  execu- 
tive the  power  of  dissolving  the  legislature. 

In  these  republics  the  nominal  is  also  the  real  and 
acting  executive  head,  whereas  in  the  British  system 
a  responsible  ministry  is  interposed  between  the  nominal 
head  and  the  legislature. 

In  all  the  above-mentioned  points  the  South  African 
system  bears  a  close  resemblance  to  the  American. 

1  Using-  the  expression  which  Bagehot  has  made  familiar,  though  of  course 
Parliament  is  far  from  determining  the  entire  composition  of  a  ministry,  which 
may  occasionally  contain  persons  it  would  not  have  selected. 


384  TWO   SOUTH  AFRICAN  CONSTITUTIONS 

In  these  republics  the  President's  Council  need  not 
consist  of  persons  in  agreement  with  his  views  of  policy. 
It  may  even  be  hostile  to  him,  as  part  of  Warren  Hast- 
ings's council  at  Calcutta  was  in  permanent  opposition 
to  that  governor.  Nor  does  the  Executive  Council  con- 
sist, like  the  (normal)  British  cabinet  and  United  States 
Federal  cabinet,  of  the  heads  of  the  great  administrative 
departments,  though  several  officials  sit  in  it. 

On  the  other  hand,  the  South  African  system  agrees 
with  the  British  in  permitting  the  head  of  the  working 
executive  to  speak  in  the  legislature,  a  permission  which 
has  proved  to  be  of  the  highest  importance,  and  which 
in  America  is  given  by  usage  neither  to  the  Federal 
President 1  nor  to  a  State  governor. 

The  chief  differences  between  the  South  African  and 
the  American  system  are  the  following : — 

The  President  has,  in  the  South  African  republics, 
far  less  independence  than  belongs  in  the  United  States 
to  either  a  Federal  President  or  to  the  Governor  of  a 
State.  He  has  no  veto  on  acts  of  the  legislature,  and 
less  indirect  power  through  the  patronage  at  his  dispo- 
sal. Moreover,  the  one-chambered  legislature  is  much 
stronger  as  against  him  than  are  the  two-chambered 
legislatures  of  America,  which  may,  and  frequently  do, 
differ  in  opinion,  so  that  the  President  or  Governor  can 
play  off  one  against  the  other.  Further,  as  already  ob- 
served, an  American  Federal  President  has  a  cabinet 
of  advisers  whom  he  has  himself  selected,  and  an  Ameri- 
can State  governor  has  usually  officials  around  him  who, 
being  elected  by  a  party  vote  at  the  same  election,  are 
probably  his  political  allies ;  whereas  a  South  African 
President  might  possibly  have  an  Executive  Council  of 
opponents  forced  on  him  by  the  Volksraad.  And  even 
in  negotiations  with  foreign  states,  he  cannot  act  apart 
from  this  Executive  Council. 

The  distinctive  note  of  both  these  South  African  Con- 

1  Although  there  is  nothing  in  the  federal  constitution  to  prevent  a  President 
from  addressing  cither  House  of  Congress. 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  385 

stitutions  is  the  kind  of  relation  they  create  between  the 
Executive  and  the  Legislature.  These  powers  are  not 
disjoined,  as  in  the  United  States,  because  a  South  Afri- 
can President  habitually  addresses  and  may  even  lead 
the  Volksraad.  Neither  are  they  united,  as  in  Britain 
and  her  colonies,  where  the  Executive  is  at  the  same 
time  dependent  on  the  legislature,  and  also  the  leader  of 
the  legislature,  for  the  South  African  President  is  elected 
by  the  people  for  a  fixed  term,  and  cannot  be  displaced 
by  the  Volksraad.  He  combines  the  independence  of  an 
American  President  with  the  opportunities  of  influ- 
encing the  legislature  enjoyed  by  a  British,  or  British 
colonial,  Ministry.  For  nearly  all  practical  purposes  he 
is  at  the  mercy  of  the  legislature,  because  he  has  neither 
a  veto,  like  the  American  President,  nor  a  power  of  dis- 
solution, like  the  British  Ministry.  The  Volksraad  could 
take  all  real  power  from  him,  should  it  be  so  minded. 
But  he  is  strong  by  the  possession  of  the  two  advantages 
just  mentioned.  He  can  persuade  his  Volksraad,  which 
has  not,  by  forming  itself  into  organized  parties,  become 
inaccessible  to  persuasion.  He  can  influence  the  opinion 
of  his  people,  because  he  is  their  choice,  and  a  single  man 
in  a  high  place  fixes  the  attention  and  leads  the  minds  of 
a  people  more  than  does  an  assembly. 

It  must,  however,  be  remembered  that  the  features — 
perhaps  one  may  say  the  merits — which  I  have  noted 
as  shown  in  the  working  of  the  South  African  system, 
belong  rather  to  small  than  to  large  communities.  The 
Free  State  had  in  1895  onhT  some  seventeen  thousand 
voting  citizens,  the  Transvaal  not  many  more.  Athens 
in  the  days  of  Themistocles  had  about  thirty  thousand. 
In  large  countries,  with  large  Legislatures,  whose  size 
would  engender  political  parties,  things  would  work  out 
differently.  Furthermore,  in  a  large  State,  the  admini- 
strative departments  would  be  numerous  and  their  work 
heavy.  The  President  could  not  discuss  departmental 
affairs  with  the  Raad,  and  could  not  easily  be  made  per- 
sonally responsible  for  all  that  his  administrative  officers 
35 


386  TWO  SOUTH  AFRICAN  CONSTITUTIONS 

did.  And  the  less  knowledge  he  had  of  affairs  and  of 
persons,  the  less  influence  he  exerted  over  the  Raad,  the 
more  would  his  Executive  Council  tend  to  check  him. 
Its  members  would  probably  intrigue  with  the  leaders  of 
parties  in  the  Volksraad,  and  make  themselves  a  more 
important  factor  in  the  government  than  they  have  been 
while  overshadowed  by  his  personality. 

Any  one  who,  knowing  little  or  nothing  about  the 
social  conditions  and  the  history  of  these  two  republics, 
should  try  to  predict  the  working  of  their  governments 
from  a  perusal  of  their  constitutions,  would  expect  to 
find  them  producing  a  supremacy,  perhaps  a  tyranny,  of 
the  representative  assembly ;  for  few  checks  upon  its 
power  are  to  be  found  within  the  four  corners  of  either 
instrument.  He  would  be  prepared  to  see  party  govern- 
ment develop  itself  in  a  pronounced  form.  Power  would 
be  concentrated  in  the  party  majority  and  its  leaders. 
The  Executive  would  become  the  humble  instrument  of 
their  will.  The  courts  of  law,  especially  in  the  Trans- 
vaal with  its  Flexible  constitution,  would  be  unable  to 
stem  the  tide  of  legislative  violence.  The  President 
might  perhaps  attempt  to  resist  by  producing  a  dead- 
lock over  appointments ;  and  he  would  have  a  certain 
moral  advantage  in  being  the  direct  choice  of  the  people. 
But  the  one-chambered  Legislature  would  in  all  proba- 
bility prevail  against  him. 

Is  this  what  has  in  fact  happened?  Far  from  it. 
Party  government,  in  the  English  and  American  sense, 
has  not  made  its  appearance.  The  Legislature  has  not 
become  the  predominant  power,  subjecting  all  others 
to  itself.  It  has,  in  general,  followed  the  lead  of  the 
Executive.  The  Courts  of  law,  though  (in  the  Trans- 
vaal) at  one  moment  menaced,  have  administered  jus- 
tice with  fairness  and  independence.  But  in  order  to 
describe  what  has  happened,  I  must,  in  a  very  few  sen- 
tences, deal  separately  with  the  Orange  Free  State  and 
the  South  African  Republic,  for  though  their  constitu- 
tions are  similar  and  the  origin  of  their  respective  popu- 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  387 

lations  nearly  identical1,  their  history  has  been  very 
different. 

The  Orange  Free  State  had,  for  many  years  prior  to 
1899,  a  comparatively  tranquil  and  uneventful  career. 
One  native  war  inflicted  some  injury  upon  it,  but  the 
result  of  that  war  was  to  give  it  a  strip  of  valuable  terri- 
tory. It  had  joined  the  British  colonies  in  a  South 
African  Customs  Union,  had  placed  its  railroads  under 
the  management  of  the  Cape  Government,  had  main- 
tained friendly  relations  with  the  two  British  self-govern- 
ing colonies,  had  extended  the  franchise  to  immigrants 
on  easy  terms,  and  was  at  all  times  recognized  as  abso- 
lutely independent  by  the  British  Government.  Inter- 
nally its  development,  if  not  rapid,  was  both  steady  and 
healthful.  There  was  no  poverty  among  the  people,  and 
hardly  any  wealth.  No  exciting  questions  arose  to  di- 
vide the  citizens,  and  no  political  parties  grew  up.  The 
Legislature,  although  too  large,  has  been  a  sensible, 
business-like  body,  which  wasted  no  more  time  than 
debate  necessarily  implies.  From  1863  to  1888  it  was 
guided  by  the  counsels  of  President  Brand,  whom  the 
people  elected  for  five  successive  terms,  and  whose 
power  of  sitting  in  it  and  addressing  it  proved  of  the 
utmost  value,  for  his  judgement  and  patriotism  inspired 
perfect  confidence.  His  successor  Mr.  Reitz,  who  was 
obliged  by  ill-health  to  retire  from  office  in  1895,  en- 
joyed equal  respect  and  almost  equal  influence,  when  he 
chose  to  exert  it,  with  the  Volksraad,  and  things  went 
smoothly  under  him,  as  they  promised  to  do  under  Presi- 
dent Steyn,  who  was  elected  in  1896,  for  the  latter  also 
was  believed — so  I  heard  when  visiting  the  Free  State 
in  1895 — to  possess  the  qualities  which  had  endeared  his 
predecessors  to  the  community.  The  Executive  Council 
has  not  proved  to  be  a  very  valuable  part  of  the  scheme 
of  government ;  and  some  judicious  observers  thought 
the  constitution  ought  to  be  amended  by  strengthening 

1  The  British  element  is  larger  among  the  citizens  of  the  Orange  Free  State  than 
it  is  in  the  burgher  population  of  the  Transvaal. 


388  T]\0   SOUTH  AFRICAX  COXSTITUTIOXS 

the  position  of  the  courts  and  introducing  provisions  for 
a  popular  vote  on  constitutional  amendments,  similar 
to  those  which  exist  in  American  States  and  in  Switzer- 
land. But,  on  the  whole,  the  system  of  government 
worked  smoothly,  purely  and  efficiently;  the  Legisla- 
ture was  above  suspicion,  and  the  people  were  content 
with  their  institutions. 

Very  different  had  been  the  annals  of  the  South  Afri- 
can Republic.  Soon  after  the  Grondwet  was  adopted 
in  1858,  a  civil  war  broke  out;  and  from  that  time  onward 
factions  and  troubles  of  all  kinds  were  seldom  wanting. 
In  1877  the  country,  then  threatened  by  native  enemies, 
was  annexed  to  the  British  dominions  against  the  will 
of  the  people  :  in  1881  its  autonomy  was  restored,  subject 
to  British  suzerainty1.  Its  government,  however,  con- 
tinued to  be  pressed  by  financial  and  other  difficulties, 
till  the  discovery  of  rich  gold-fields  in  1884-6,  while  sud- 
denly increasing  the  revenue,  drew  in  a  stream  of  im- 
migrants which  has  steadily  continued  to  flow,  and 
therewith  raised  that  new  crop  of  political  troubles  of 
which  all  the  world  has  heard  2.  The  result  has  been  that 
the  Constitution  has  never  had  any  period  of  compara- 
tive peace  in  which  its  working  could  be  fairly  tested. 
If  it  has  not  worked  as  smoothly  as  that  of  the  Free 
State,  this  may  be  due  not  merely  to  inherent  defects 
but  to  the  strain  which  civil  and  foreign  wars  have 
placed  upon  it.  The  Legislature,  however,  has  not 
played  the  leading  part.     President  Burgers,  who  held 

1  A  further  convention  was  made  in  1884,  whose  articles,  omitting  all  reference 
to  '  suzerainty  '  conceded  an  independence  qualified  only  in  respect  of  the  veto 
retained  by  Britain  over  treaties  with  foreign  powers. 

2  When  these  immigrants  from  all  parts  of  the  world  swarmed  into  the  coun- 
try, admission  to  the  franchise  was  made  more  difficult,  because  the  conservative 
section  of  the  citizens  naturally  feared  that  the  newcomers,  many  of  whom  did  not 
intend  to  make  the  country  their  home,  might,  if  they  forthwith  acquired  voting 
power,  soon  secure  a  majority  and  overturn  the  existing  system  of  the  republic, 
including  the  official  use  of  the  Dutch  language  and  the  relations  of  Church  and 
State.  These  non-burgher  immigrants  have  been  absurdly  described  as  '  helots.' 
A  closer  parallel  to  them  is  to  be  found  not  in  the  semi-serfs  of  Sparta  but  in  the 
class  of  resident  aliens  known  at  Athens  as  metics  OitToucoi).  But  they  were  indeed 
far  better  off  than  that  class,  since  they  enjoyed  full  civic  rights  in  all  matters  of 
private  law,  wanting  only  the  right  of  sharing  in  the  government. 


TWO  SOUTH  AFRICAN  CONSTITUTIONS  389 

office  from  1872  till  1877,  was>  like  President  M.  W.  Pre- 
torius  before  him,  practically  more  powerful  than  the 
Volksraad;  and  since  1881  President  Kruger,  who  has 
been  thrice  re-elected,  has  been  the  ruling  force  in  the 
politics  of  the  country.  By  his  influence  over  the  peo- 
ple, by  his  constant  presence  and  speeches  in  the  Volks- 
raad, he  threw  its  leaders  entirely  into  the  shade,  and 
probably  exerted  more  actual  power  than  the  chief  ma- 
gistrate of  any  other  republic,  though  there  was  scarcely 
any  other  chief  magistrate  whose  legal  authority  was 
confined  within  such  narrow  limits.  So  much  may  fo- 
reign troubles  or  economic  and  social  facts,  and  so  much 
do  the  qualities  of  individual  men,  affect  and  modify 
and  prevail  over  the  formal  rules  and  constitutional  ma- 
chinery of  government.  The  Legislature  therefore  has 
not  had  in  the  Transvaal  that  career  of  encroachment 
upon  and  triumph  over  the  other  authorities  in  the  State 
which  might  have  been  predicted  for  it.  Its  turn  might 
have  come  when  external  relations  were  tranquil  and 
domestic  controversies  arose.  When  foreign  affairs  oc- 
cupy men's  minds  and  call  for  rapid  decision  as  well  as 
for  continuity  of  policy,  the  Legislature  is  apt  to  be,  in 
all  countries,  dwarfed  by  the  Executive. 

Postscript. 

Since  the  foregoing  sketch  of  these  remarkable  ex- 
periments in  the  construction  of  Frames  of  Government 
was  written  (in  1896),  both  the  Dutch  republics  have 
become  involved  in  a  deplorable  war  with  England, 
which  has  lasted  for  many  months,  and  still  continues 
at  the  time  of  this  writing.  It  has  brought  misery  and 
desolation  upon  South  Africa,  and  not  least  upon  that 
singularly  happy, prosperous, peaceful  and  well-governed 
community,  the  Orange  Free  State.  While  the  flames 
are  still  raging,  no  one  can  conjecture  in  what  form 
these  two  constitutions  will  emerge  from  the  furnace, 
or  whether  indeed  they  will  survive  at  all.    In  the  midst 


390  TWO  SOUTH   AFRICAN   CONSTITUTIONS 

of  so  terrible  a  eatastrophc,  a  catastrophe  unredeemed 
by  any  prospect  of  benefit  to  any  of  the  combatants, 
and  one  whose  results  must  be  fateful  in  many  ways  for 
the  future  of  South  Africa,  and  possibly  also  of  Bri- 
tain, the  destruction  or  transformation  of  constitutions 
seems  but  a  small  matter.  But  had  these  two  republics 
been  suffered  to  continue  the  normal  course  of  their 
constitutional  development,  that  development  would 
have  been  full  of  interest.  It  might  even  have  conveyed 
valuable  instruction  or  suggested  useful  examples  to 
other  small  commonwealths,  for  in  the  scheme  of  these 
Constitutions,  and  especially  in  that  of  the  Free  State, 
there  are  some  merits  not  to  be  found  either  in  the 
American  or  in  the  British  system.  These  simple  Free 
State  farmers  were  wiser  in  their  simplicity  than  some 
of  the  philosophers  who  have  at  divers  times  planned 
frames  of  government  for  nascent  communities.  But 
though  Wisdom  is  justified  of  all  her  children,  she  can- 
not secure  that  her  children  shall  survive  the  shock  of 
arms. 


VIII 

THE    CONSTITUTION    OF  THE 
COMMONWEALTH  OF  AUSTRALIA 

I.  Introductory. 

Australia  is  the  first  instance  in  history  of  a  whole 
continent  whose  inhabitants  are  all  (if  we  exclude  the 
vanishing  aborigines)  of  one  race  and  all  owe  one  alle- 
giance. Thus  it  has  supplied  the  only  instance  in  which 
a  political  constitution  has  been,  or  could  have  been, 
framed  for  a  whole  continent.  It  is  moreover  one  of 
the  very  few  cases  in  history  in  which  a  number  of  com- 
munities politically  unconnected  (save  by  their  common 
allegiance  to  a  distant  Crown)  who  had  felt  themselves 
to  be  practically  a  nation  have  suddenly  transformed 
themselves  into  a  National  State,  formally  recognizing 
their  unity  and  expressing  it  in  the  national  institutions 
which  they  proceeded  to  create.  There  could  hardly  be 
a  more  striking  illustration  of  the  speed  with  which 
events  have  been  moving  during  the  last  and  the  present 
age  than  the  fact  that  Australia,  or  New  Holland  as  it 
was  then  called,  was,  except  as  to  part  of  its  coasts, 
marked  as  a  Terra  Incognita  upon  our  maps  so  late  as 
the  beginning  of  the  eighteenth  century,  that  the  first 
British  settlement  was  not  planted  in  it  at  Sydney  (not 
far  from  Captain  Cook's  Botany  Bay)  till  1788,  that  re- 
sponsible government  was  not  conferred  upon  the  oldest 


392  THB  AUSTRALIAN    COM  M<>\  \\  ft  ALT U 

colony,  New  South  Wales,  until  1855,  nor  upon  West 
Australia  till  1890. 

Besides  the  interest  with  which  every  one  must  see 
the  birth  of  a  new  nation,  occupying  a  vast  and  rich 
territory,  the  student  of  political  science  finds  further 
matter  for  inquiry  and  reflection  in  the  enactment  of  an 
elaborate  constitution  for  the  Commonwealth  of  Au- 
stralia. Every  creation  of  a  new  scheme  of  government 
is  a  precious  addition  to  the  political  resources  of  man- 
kind. It  represents  a  survey  and  scrutiny  of  the  consti- 
tutional experience  of  the  past.  It  embodies  an  experi- 
ment full  of  instruction  for  the  future.  The  statesmen 
of  the  Convention  which  framed  this  latest  addition  to 
the  world's  stock  of  Instruments  of  Government  had 
passed  in  review  all  previous  experiments,  had  found 
in  them  examples  to  follow  and  other  examples  to  shun. 
had  drawn  from  them  the  best  essence  of  the  teachings 
they  were  fitted  to  impart.  When  the  Convention  pre- 
pared its  highly  finished  scheme  of  polity,  it  delivered 
its  judgement  upon  the  work  of  all  who  had  gone  before, 
while  contributing  to  the  materials  which  will  be  avail- 
able for  all  who  come  hereafter  to  the  work  of  building 
up  a  State. 

Nearly  all  the  precedents  which  the  Australian  Con- 
vention had  at  its  disposal  belong  to  very  recent  times, 
in  fact  to  the  last  century  and  a  half.  Though  federal 
governments  are  ancient — the  oldest  apparently  is  that 
formed  by  the  cities  of  Lycia  in  the  fourth  century  B.C. 
— the  ancient  federations  scarcely  got  beyond  the  form 
of  leagues  of  small  republics  for  the  purpose  of  common 
military  defence.  Such  leagues  never  quite  grew  into 
Federal  States,  properly  so  called,  i.e.  States  in  which 
the  central  government  exercises  direct  power  over  the 
citizens  of  the  component  communities.  The  same  re- 
mark applies  to  the  confederacies  of  the  Middle  Ages, 
such  as  that  of  the  Hanse  Towns  and  that  of  the  old 
Swiss  Cantons,  as  well  as  to  the  United  Provinces  of 
the  Netherlands.    The  first  true  Federal  State  founded 


THE  AUSTRALIAN  COMMONWEALTH  393 

on  a  complete  and  scientific  basis  was  the  United  States, 
which  dates  from  1788,  when  its  present  Constitution 
was  substituted  for  the  Articles  of  Confederation  of 
1776.  Next  came  the  Constitution  of  the  Swiss  Con- 
federation, enacted  in  1848,  and  replacing  a  much  looser 
form  of  union  which  had  previously  joined  the  Cantons 
of  Switzerland.  Its  present  amended  form  dates  from 
1874.  The  third  was  the  Constitution  of  Canada,  estab- 
lished by  the  British  North  America  Act  of  1867.  Still 
later  came  the  Constitution  of  the  North  German  Con- 
federation (1866)  enlarged  into  that  of  the  new  Ger- 
manic Empire  (1871),  a  remarkable  Federal  State  with 
a  monarch  for  its  head,  and  including  as  its  members 
both  large  kingdoms,  such  as  Bavaria  and  Wurtemberg, 
and  the  city  republics  of  Lubeck,  Bremen,  and  Ham- 
burg1. But  this  last-named  Federation,  instructive  as  it 
is,  deals  with  conditions  too  dissimilar  from  those  of 
Australia  to  furnish  many  precedents  in  point.  It  was 
the  Constitutions  of  the  United  States  and  of  Canada 
which  the  Australians  studied  most  carefully,  and 
whence  they  drew  as  well  inspiration  as  many  useful 
suggestions.  And  the  student  who  examines  the  Au- 
stralian scheme  will  find  it  interesting  to  note  many 
points  that  recall,  by  way  either  of  likeness  or  of  con- 
trast, the  systems  of  the  United  States,  of  Switzerland, 
and  of  Canada.  It  is  only  with  these  three  that  I  propose 
to  compare  the  Australian  Constitution  in  the  pages  that 
follow.  As  I  am  writing  not  for  lawyers  but  for  stu- 
dents of  history  and  of  constitutions,  who  desire  to  un- 
derstand the  nature  of  this  new  Government  sufficiently 
to  follow  with  intelligence  the  course  of  political  life 
under  it,  I  shall  pass  lightly  over  its  more  technical  and 
more  purely  legal  aspects,  and  dwell  rather  upon  those 
general  features  which  will  give  to  the  future  Australian 
polity  its  character  and  spirit. 

1  One  might  add  the  Constitution  of  the  Austro-Hungarian  Monarchy,  which 
is  a  sort  of  double  federation.  But  it  is  too  peculiar  to  serve  as  an  example  to  other 
peoples  proposing  to  federalize. 


394  THE  AUSTRALIAN  COMMONWEALTH 

II.  The  Movement  for  Federation. 

Like  the  settlements  of  Britain  in  North  America,  the 
Australian  settlements  were  organized  as  Colonies  at 
different  dates,  and  several  of  them  independently  of  the 
others1.  So,  again  like  those  of  North  America,  each 
remained  legally  unconnected  with  the  others,  except 
through  the  allegiance  they  all  owed  to  the  British 
Crown,  which  sent  out  Governors  to  administer  them. 
These  officers  were  at  first  practically  despotic ;  but 
when  self-government  was  conferred  upon  a  Colony, 
they  became  the  nominal  heads  of  an  executive  which 
in  fact  consisted  of  ministers  responsible  to  the  elective 
legislature  of  that  Colony. 

Little  as  there  was  in  the  way  of  official  connexion 
between  the  scattered  settlements,  their  inhabitants  al- 
ways deemed  themselves  Australians,  giving  their  senti- 
mental attachment  rather  to  the  country  as  a  whole  than 
to  their  respective  colonies.  They  were  all  English ; 
they  all  lived  under  similar  conditions :  their  local  life 
had  not  lasted  long  enough  to  form  local  traditions  with 
which  sentiment  could  entwine  itself.  The  very  names 
of  some  of  the  colonies  did  not  favour  individualization, 
for  who  would  call  himself  a  Newsouthwalesian?  And 
the  idea  that  the  colonies  ought  to  be  united  into  one 
political  body  emerged  very  early.  As  far  back  as  1849 
a  Committee  in  England  had  recommended  that  there 
should  be  a  Governor-General  for  all  Australia,  with 
power  to  convene  a  General  Assembly  to  legislate  on 
matters  of  common  colonial  interest,  and  a  bill  intro- 
duced into  Parliament  in  that  year  contained  clauses  for 
establishing  such  a  legislature.  These  provisions  were 
dropped,  for  the  time  was  not  ripe,  yet  the  idea  continued 
to  occupy  the  minds  of  Australian  statesmen  from  that 

1  New  South  Wales  in  1788,  Tasmania  in  1825,  Western  Australia  in  1829,  South 
Australia  in  1836,  Victoria  in  1851,  Queensland  in  1859.  Victoria  and  Queensland 
had  however  been  originally  settled  OS;6  and  1826),  and  for  some  time  admini- 
stered, from  New  South  Wales,  while  Tasmania  had  been  made  a  penal  settlement 
as  early  as  1804. 


THE  AUSTRALIAN  COMMONWEALTH  395 

year  onwards ;  and  it  received  a  certain  impulse  from 
the  creation  of  the  Canadian  Confederation  in  1867. 
What  it  wanted  was  motive  power,  that  is  to  say,  a  sense 
of  actual  evils  or  dangers  to  be  averted,  of  actual  bene- 
fits to  be  secured,  by  the  union  of  the  Colonies  into  one 
National  State.  Democratic  communities,  occupied  by 
their  own  party  controversies,  are  little  disposed  to  deal 
with  questions  which  are  not  urgent,  and  which  hold  out 
no  definite  promise  either  of  benefit  to  the  masses  or  of 
political  gain  to  the  leaders.  However,  in  1883  events 
occurred  which  evoked  a  new  Pan-Australian  feeling, 
and  indicated  objects  fit  to  be  secured  by  a  united  Au- 
stralian government.  The  late  Lord  Derby,  then  Secre- 
tary of  State  for  the  Colonies,  was  the  most  cautious  and 
unsentimental  of  mankind.  He  belonged  to  the  old 
school  of  English  statesmen  who  deprecated — and  in 
some  cases  wisely  deprecated — further  additions  to  the 
territories  and  responsibilities  of  Britain.  Disregard- 
ing the  representations  of  the  Governments  of  several 
among  the  Colonies,  he  neglected  to  occupy  the  north- 
ern part  of  the  great  neighbouring  island  of  New  Guinea 
which  Australian  opinion  desired  to  see  British,  and 
permitted  it,  to  their  great  vexation,  to  be  taken  by 
Germany.  About  the  same  time  the  escape  of  convicts 
into  Australia  from  the  French  penal  settlement  in  New 
Caledonia  had  caused  annoyance,  and  movements  were 
soon  afterwards  made  by  France  which  seemed  to  in- 
dicate an  intention  to  appropriate  the  New  Hebrides 
group  of  islands.  These  occurrences  roused  the  Au- 
stralians to  desire  an  authority  which  might  deliver  their 
common  wishes  to  the  Home  Government  and  take  any 
other  steps  necessary  for  guarding  their  common  in- 
terests. Accordingly  a  conference  of  delegates  from  all 
the  Colonies,  including  New  Zealand  and  Fiji,  met  in 
1884,  and  prepared  a  scheme  which  was  transmitted  to 
England,  and  was  there  forthwith  enacted  by  the  Im- 
perial Parliament  under  the  name  of  The  Federal  Coun- 
cil of  Australasia  Act,  1885.     This  scheme  was,  how- 


39(5  TRB  AUSTRALIAN    C0MM02TWEALTB 

ever,  (as  I  observed  when  it  was  under  discussion  in  the 
House  of  Commons)  a  very  scanty,  fragmentary  and  im- 
perfect sketch  of  a  Federal  Constitution.  It  had  no 
executive  power  and  no  command  of  money.  No  colony 
need  join  unless  it  pleased,  and  each  might  withdraw 
when  it  pleased.  Thus  it  befell  that  the  plan  excited 
little  popular  interest,  and  gave  such  faint  promise  of 
energetic  action  that  only  four  colonies,  Victoria, 
Queensland,  Tasmania,  and  South  Australia,  entered 
into  it ;  and  of  these  South  Australia  presently  with- 
drew. Meanwhile  the  need  for  some  general  military 
organization  for  all  the  Colonies  began  to  be  felt;  and 
further  objects  attainable  by  union  floated  before  men's 
minds.  With  the  increase  of  trade  and  industry,  the 
vexation  of  tariff  barriers  between  the  colonies  grew 
daily  less  tolerable.  Subjects  emerged  on  which  uni- 
formity of  legislation  was  felt  to  be  needful.  The  irriga- 
tion question,  one  of  great  importance  for  so  arid  a 
country,  brings  New  South  Wales,  where  some  of  the 
large  rivers  have  their  source,  into  close  relation  with 
Victoria  and  South  Australia,  and  requires  to  be  treated 
on  common  lines.  These  and  other  grounds  led  to  an 
Inter-Colonial  Conference  of  Ministers  at  Melbourne  in 
1890,  and  then  to  the  summoning  of  a  Convention  of 
Delegates  from  the  Parliaments  of  all  the  Colonies,  in- 
cluding Tasmania.  This  latter  body,  which  included 
many  leading  men,  met  at  Sydney  in  1891,  debated  the 
matter  with  great  ability,  and  produced  a  Draft  Bill, 
which  became  the  basis  of  all  subsequent  discussions. 
The  movement,  hitherto  confined  to  a  group  of  political 
leaders,  now  began  to  be  taken  up  by  the  people,  and  be- 
came, especially  when  the  financial  troubles  of  1893  had 
begun  to  pass  away,  the  principal  subject  in  men's  minds. 
That  crisis  had  shown  all  the  Colonies  how  closely  their 
interests  were  bound  together,  and  had  made  them  de- 
sire to  remove  every  hindrance  to  an  industrial  and 
financial  recovery.  A  Conference  of  Prime  Ministers 
at  Hobart  in  1895  led  to  the  passing  by  the  several  Co- 


THE  AUSTRALIAN  COMMONWEALTH  397 

lonial  Parliaments  of  enabling  Acts  under  which  dele^ 
gates  were  chosen,  this  time  (following  recent  American 
precedents)  by  popular  vote,  to  a  new  Convention  which 
met  at  Adelaide  (in  South  Australia)  in  1897.  It  pro- 
duced a  second  draft  constitution,  based  on  that  of  1891, 
and  laid  it  before  the  legislatures  of  the  Colonies  for 
criticism.  About  seventy-five  amendments  were  pro- 
posed, and  were  considered  by  the  Convention  at  its 
further  sittings,  which  closed  in  March,  1898.  The  draft 
Constitution  was  then  submitted  to  a  popular  vote,  a 
new  expedient  in  the  British  dominions,  but  one  amply 
justified  by  the  need  for  associating  the  people  with  the 
work.  New  South  Wales  alone  failed  to  adopt  it  by  the 
prescribed  majority,  because  a  large  section  of  her  in- 
habitants thought  that  her  interests  had  not  been  duly 
regarded,  but  after  a  few  amendments  had  been  in- 
serted at  a  conference  of  the  Colonial  Prime  Ministers, 
her  people  ratified  it  upon  a  second  vote.  On  this  vote 
enormous  majorities  were  secured  in  Victoria,  South 
Australia  and  Tasmania,  smaller  ones  in  New  South 
Wales  and  Queensland.  The  Constitution  was  then  sent 
to  England  and  passed  into  law  by  the  Parliament  of 
the  United  Kingdom  under  the  title  of  The  Common- 
wealth of  Australia  Constitution  Act  (63  &  64  Vict, 
cap.  12).  Action  by  the  Imperial  Parliament  was  not 
only  a  convenient  way  of  overriding  all  the  colonial  con- 
stitutions by  one  comprehensive  Act,  but  was  legally 
necessary,  inasmuch  as  some  provisions  of  the  Consti- 
tution transcended  the  powers  of  all  the  colonial  legisla- 
tures taken  together.  Since  it  had  from  the  first  been 
understood  that  the  wish  of  the  mother  country  was  not 
to  impose  her  own  views  but  simply  to  carry  out  the 
wishes  of  the  Colonies,  only  one  slight  alteration,  an 
alteration  rather  of  form  than  substance,  was  made  in 
the  draft  as  transmitted  from  Australia,  the  ill-con- 
sidered notion  of  introducing  a  larger  change  having 
been  eventually  dropped  by  the  British  Ministry. 

I  have  mentioned  these  details  in  order  to  emphasize 


398  THE   AUSTRALIAN   COMUOXWEALTH 

the  time,  care  and  pains  bestowed  by  the  Australians — 
for  the  work  was  entirely  their  own — upon  this  latest 
effort  of  constructive  statesmanship.  The  Constitution 
of  the  United  States  was  framed  by  a  Convention  which 
sat  at  Philadelphia,  with  closed  doors,  for  nearly  five 
months,  and  was  accepted  by  Conventions  in  all  the 
thirteen  States  without  change,  though  ten  amendments 
were  immediately  thereafter  passed  by  general  consent, 
their  adoption  having  been  the  price  paid  for  the  ratifi- 
cation of  the  main  instrument  by  some  doubtful  States. 

The  Constitution  of  Canada  took  a  little  more  than 
two  years  to  settle.  The  Resolutions  on  which  it  was 
based  were  first  of  all  drafted  by  a  conference  of  dele- 
gates at  Quebec.  These  were  approved  after  full  debate 
by  the  legislatures  of  the  Provinces,  and  were,  after 
some  modifications,  embodied  in  a  Bill  prepared  by  a 
small  conference  of  Canadian  statesmen  who  met  in 
London.  The  Bill  was  then  passed  by  the  Imperial  Par- 
liament, never  having  been  submitted  to  any  popular 
vote.  But  this  Australian  instrument  is  the  fruit  of  de- 
bates in  two  Conventions,  of  a  minute  examination  by 
legislatures,  of  a  subsequent  revision  by  the  second  Con- 
vention, of  further  modifications  in  a  few  details  by  a 
conference  of  Prime  Ministers,  and  has  after  all  this 
preparation  been  sealed  by  the  approval  of  the  peoples 
of  the  Colonies  concerned.  The  process  of  incubation 
lasted  for  nearly  nine  years,  being  all  the  while  conducted 
in  the  full  blaze  of  newspaper  reporting  and  under  the 
constant  oversight  of  public  opinion. 

III.  The  Causes  which  brought  arout  Federation. 

The  reasons  and  grounds  assigned  by  the  advocates 
of  Federation  were  more  numerous  than  those  urged  in 
the  United  States  in  1787-9,  or  in  Canada  in  1864-6; 
but  none  of  them  were  so  imperative,  for  the  Australian 
Colonics  were  far  less  seriously  menaced  by  actually 
insistent  evils,  due  to  the  want  of  a  common  national 


THE  AUSTRALIAN   COMMONWEALTH  399 

Government,  than  was  the  welfare  either  of  the  Ameri- 
can States  in  1787,  or  of  Switzerland  in  1848,  or  of  Ca- 
nada in  1867.  In  North  America,  it  was  the  growing 
and  indeed  hopeless  weakness  and  poverty  of  the  exist- 
ing Confederation,  coupled  with  the  barriers  to  com- 
mercial intercourse,  the  confusion  and  depreciation  of 
currency,  and  the  financial  demoralization  of  some  of 
the  States,  all  of  which  had  just  emerged  from  an  ex- 
hausting war,  that  drew  the  wisest  minds  of  the  nation 
to  Philadelphia,  induced  them  to  persist  in  efforts  to 
devise  a  better  union,  and  enabled  them  to  force  its  ac- 
ceptance upon  a  people  largely  reluctant.  In  Switzer- 
land it  was  the  War  of  Secession  (the  so-called  Sonder- 
bund  war)  of  1847  that  compelled  the  victorious  party  to 
substitute  a  new  and  truly  federal  constitution  for  the 
league  which  had  proved  too  weak.  In  Canada  the  re- 
lations of  the  French-speaking  and  English-speaking 
Provinces  (Lower  and  Upper  Canada)  had  become  so 
awkward  that  constitutional  government  was  being 
practically  brought  to  a  standstill,  and  nothing  remained 
but  that  the  leaders  of  the  two  parties  should  devise 
some  new  system.  Australia  was  in  no  such  straits. 
Her  colonies  might  have  continued  to  go  on  and  prosper, 
as  six  unconnected  self-governing  communities.  It  is 
therefore  all  the  more  to  the  credit  of  her  people  that 
they  forwent  the  pleasures  of  local  independence  which 
are  so  dear  to  vivacious  democracies,  perceiving  that 
although  necessity  might  not  dictate  a  federal  union, 
reason  recommended  it. 

The  grounds  which  were  used  in  argument  to  urge 
the  adoption  of  the  Federal  Constitution  may  be  summed 
up  as  follows  : — 

The  gain  to  trade  and  the  general  convenience  to  be 
expected  from  abolishing  the  tariffs  established  on 
the  frontiers  of  each  colony. 

The  need  for  a  common  system  of  military  defence. 

The  advantages  of  a  common  legislation  for  the  regu- 
lation of  railways  and  the  fixing  of  railway  rates. 


400  THE  AUSTRALIAN  COMMONWEALTH 

The  advantages  of  a  common  control  of  the  larger 
rivers  for  the  purposes  both  of  navigation  and  of 
irrigation. 
The  need  for  uniform  legislation  on  a  number  of  com- 
mercial and  industrial  topics. 
The  importance  of  finding  an  authority  competent  to 
provide  for  old-age  pensions  and  for  the  settlement 
of  labour  disputes  all  over  the  country. 
The  need  for  uniform  provisions  against  the  entrance 
of  coloured  races  (especially  Chinese,  Malays,  and 
Indian  coolies). 
The  gain  to  suitors  from  the  establishment  of  a  High 
Court  to  entertain  appeals  and  avoid  the  expense 
and  delay  involved  in  carrying  cases  to  the  Privy 
Council  in  England. 
The  probability  that  money  could  be  borrowed  more 
easily  on  the  credit  of  a'n  Australian  Federation  than 
by  each  colony  for  itself. 
The  stimulus  to  be  given  to  industry  and  trade  by  sub- 
stituting one  great  community  for  six  smaller  ones. 
The  possibility  of  making  better  arrangements  for  the 
disposal  of  the  unappropriated  lands  belonging  to 
some  of  the  colonies  than  could  be  made  by  those 
colonies  for  themselves. 
There  was  in  these  arguments  something  to  move 
every    class    in    the    community.     To    the    commercial 
classes,  the  prospect  of  getting  rid  of  custom-houses  and 
of  finding  a  large  free  market  close  at  hand  for  all  pro- 
ducts was  attractive ;  as  was  also  that  of  sweeping  away 
the  vexation  of  railway  rates  planned  in  the  interests  of 
each  colony  rather  than  for  the  common  benefit  of  trade. 
Large-minded  men,  thinkers  as  well  as  statesmen,  hoped 
that  a  wider  field  would  bring  a  loftier  spirit  into  public 
life.    The  working-classes   might  expect,  not  only  ad- 
vantages in  the  way  of  brisker  employment,  but  the  es- 
tablishment of  that  provision  for  old  age  and  sickness 
which  a  Government  covering  the  whole  country  and 
commanding  ample  resources  could  make  more   effi- 


THE  AUSTRALIAN  COMMONWEALTH  401 

ciently  and  on  more  uniform  lines  than  even  the  richest 
colony  could  do.  Some  of  these  grounds  for  union 
measure  the  distance  which  the  world  has  travelled  since 
1788.  Railways  are  far  older  than  was  self-government 
in  the  oldest  Australian  colony,  far  younger  than  the 
youngest  of  the  original  thirteen  American  States. 
Even  so  late  as  1867,  when  Canada  was  confederated, 
no  one  thought  of  suggesting  that  the  State  should  pro- 
vide old-age  pensions. 

The  opponents  of  Australian  Federation,  although 
they  came  more  and  more  to  feel  their  cause  hopeless, 
were  an  active  party,  including  many  influential  men. 
Besides  denying  that  the  benefits  just  enumerated  would 
be  attained,  they  dwelt  upon  the  additional  cost  which  a 
new  Government,  superadded  to  the  existing  ones,  must 
entail.  They  fanned  the  jealousies  which  naturally  exist 
between  small  and  large  communities,  telling  the  former 
that  they  would  be  overborne  in  voting,  and  the  latter 
that  they  would  suffer  in  purse ;  and  they  wound  up  with 
the  usual  and  often  legitimate  appeals  to  local  sentiment. 

The  arguments  drawn  from  considerations  of  expense 
and  from  local  jealousies  were  met  by  a  series  of  in- 
genious compromises  and  financial  devices  to  which 
both  the  larger  and  smaller  colonies  were  persuaded  to 
agree,  while  the  love  of  each  community  for  its  own  po- 
litical independence  was  overborne  by  the  rising  tide  of 
national  sentiment.  An  ambition  which  aspired  to  make 
Australia  take  its  place  in  the  world  as  a  great  nation, 
mistress  of  the  Southern  hemisphere,  had  been  growing 
for  some  time  with  the  growth  of  a  new  generation 
born  in  the  new  home,  and  was  powerfully  roused  by  the 
vision  of  a  Federal  Government  which  should  resemble 
that  of  the  United  States  and  warn  off  intruders  in  the 
Western  Pacific,  as  the  American  Republic  had  an- 
nounced by  the  pen  of  President  Monroe  that  she  would 
do  on  the  North-American  Continent.  The  same  na- 
tionally self-assertive  spirit  and  desire  for  expansion 
which  has  recently  spurred  four  great  European  Powers 
26 


402  THE  AUSTRALIA'S   COUUOSWEALTH 

into  a  rivalry  for  new  colonial  possessions,  and  which 
in  1899  made  the  United  States  forswear  its  old-estab- 
lished principles  of  policy,  has  been  astir  in  the  mind  of 
the  Australians.  It  had  been  stimulated  by  the  example 
of  a  similar  spirit  in  the  mother  country,  and  by  the  com- 
pliments which  the  English  had  now  begun  to  lavish 
upon  their  colonies.  It  had  gained  strength  with  the 
growth  to  manhood  of  a  generation  born  in  Australia, 
and  nurtured  in  Australian  patriotism.  Such  a  patriot- 
ism, finding  no  fit  scope  in  devotion  to  the  particular 
colonies,  longed  for  a  larger  ideal.  It  supplied  the  mo- 
tive force  needed  to  create  a  national  union.  Without 
it,  all  the  sober  reasonings  which  counselled  confedera- 
tion might  have  failed  to  prevail.  No  equally  strenuous 
or  forward-reaching  spirit  moved  the  Canadians  in 
1867,  nor  are  the  traces  of  such  a  spirit  conspicuous  in 
the  American  debates  of  1787-9.  Some  men  were  then 
solicitous  for  liberty,  others  for  order  and  good  govern- 
ment, but  of  imperial  greatness  in  the  present  sense  of 
the  term  little  was  said.  Liberty  and  peace  at  home, 
not  military  strength  and  domination  abroad,  were  the 
national  ideals  of  those  days. 

The  history  of  the  Federation  movement  illustrates 
the  truth  that  a  great  change  is  seldom  effected  in  po- 
litics save  by  the  coincidence  of  two  moving  forces — 
the  prospect  of  material  advantage  and  the  power  of 
sentiment.  In  every  community  there  are  many  who 
can  be  moved  only  by  one  or  other  of  these  two  forces, 
and  nearly  every  man  responds  better  to  the  first  if  he 
can  be  warmed  by  the  second.  In  the  American  de- 
bates of  1788-9  feeling  was  mostly  arrayed  against  the 
proposed  federation,  though  reason  was  almost  entirely 
for  it.  Reason  prevailed,  but  prevailed  with  far  more 
difficulty  than  the  cause  of  Federalism,  with  less  cogent 
economic  grounds  behind  it,  prevailed  in  Australia. 

Like  America  in  1787,  Australia  was  fortunate  in  hav- 
ing a  group  of  able  statesmen,  most  of  whom  were  also 
lawyers,  and  so  doubly  qualified  for  the  task  of  prepar- 


THE  AUSTRALIAN   COMMONWEALTH  403 

ing  a  constitution.  Their  learning,  their  acuteness,  and 
their  mastery  of  constitutional  principles  can  best  be 
appreciated  by  any  one  who  will  peruse  the  interesting 
debates  in  the  two  Conventions.  They  used  the  experi- 
ence of  the  mother  country  and  of  their  predecessors  in 
the  work  of  federation-making,  but  they  did  so  in  no 
slavish  spirit,  choosing  from  the  doctrines  of  England 
and  from  the  rules  of  America,  Switzerland,  and  Canada 
those  which  seemed  best  fitted  to  the  special  conditions 
of  their  own  country.  And  like  the  founders  of  the 
American  and  Canadian  Unions,  they  were  not  only 
guided  by  a  clear  practical  sense,  but  were  animated  by 
a  spirit  of  reasonable  compromise,  a  spirit  which  pro- 
mises well  for  the  conduct  of  government  under  the  in- 
strument which  they  have  framed. 

IV.  The  Conditions  for  a  Federal 
Commonwealth. 

Before  examining  the  provisions  of  the  Constitution 
which  is  bringing  the  hitherto  independent  colonies  into 
one  political  body,  it  is  well  to  consider  for  a  moment 
the  territory  and  the  inhabitants  that  are  to  be  thus 
united. 

The  total  area  of  Australia  is  nearly  3,000,000  square 
miles,  not  much  less  than  that  of  Europe.  Of  this  a 
comparatively  small  part  is  peopled  by  white  men,  for 
the  interior,  as  well  as  vast  tracts  stretching  inland 
from  the  south-western  and  north-western  coasts,  is 
almost  rainless,  and  supplies,  even  in  its  better  districts, 
nothing  more  than  a  scanty  growth  of  shrubs.  Much 
of  it  is  lower  than  the  regions  towards  the  coast,  and 
parts  are  but  little  above  sea-level.  It  has  been  hitherto 
deemed  incapable  of  supporting  human  settlement,  and 
unfit  even  for  such  ranching  as  is  practised  on  arid 
tracts  in  western  North  America  and  in  South  Africa. 
Modern  science  has  brought  so  many  unexpected  things 
to  pass,  that  this  conclusion  may  prove  to  have  been 


404  THE  AUSTRALIA*   COMMONWEALTH 

too  hasty.  Still  no  growth  of  population  in  the  interior 
can  be  looked  for  corresponding  to  that  which  marked 
the  development  of  the  United  States  west  of  the  Alle- 
ghanies  in  the  beginning  of  the  nineteenth  century. 

Of  the  six  Australian  colonies,  one,  Tasmania,  occu- 
pies an  island  of  its  own,  fertile  and  beautiful,  but  rather 
smaller  (26,000  square  miles)  than  Scotland  or  South 
Carolina.  It  lies  150  miles  from  the  coast  of  Victoria. 
Western  Australia  covers  an  enormous  area  (nearly 
1,000,000  square  miles,  between  three  and  four  times 
the  size  of  Texas),  and  South  Australia,  which  stretches 
right  across  the  Continent  to  the  Gulf  of  Carpentaria, 
is  almost  as  large  (a  little  over  900,000  square  miles). 
Queensland  is  smaller,  with  668,000  square  miles ;  New 
South  Wales,  on  the  other  hand,  has  only  310,000  square 
miles  (i.e.  is  rather  larger  than  Sweden  and  Norway  and 
about  the  size  of  California,  Oregon  and  Washington 
put  together);  Victoria  only  87,000  (i.e.  is  as  large  as 
Great  Britain  and  a  little  larger  than  Idaho).  The  coun- 
try (including  Tasmania)  stretches  from  north  to  south 
over  320  of  latitude  (n°  S.  to  430  S.),  a  wider  range 
than  that  of  the  United  States  (lat.  490  N.  to  260  N.). 
There  are  thus  even  greater  contrasts  of  climate  than 
in  the  last-named  country,  for  though  the  Tasmanian 
winters  are  less  cold  than  those  of  Montana,  the  tropi- 
cal heats  of  North  Queensland  and  the  shores  of  the 
Gulf  of  Carpentaria  exceed  any  temperature  reached  in 
Louisiana  and  Texas.  Fortunately,  Northern  Australia 
is,  for  its  latitude,  comparatively  free  from  malarial  fe- 
vers. But  it  is  too  hot  for  the  out-door  labour  of  white 
men.  In  these  marked  physical  differences  between  the 
extremities  of  the  Continent  there  lie  sources  whence 
may  spring  divergences  not  only  of  material  interests 
but  ultimately  even  of  character,  divergences  compa- 
rable to  those  which  made  the  Gulf  States  of  the  Ameri- 
can Union  find  themselves  drawn  apart  from  the  States 
of  the  North  Atlantic  and  (licit  Lakes. 

It  must  also  be  noted  that  the  great  central  wilderness 


THE  AXJ8TR&LIAH  COM MOX WEALTH  405 

cuts  off  not  only  the  tropical  north  and  north-west,  but 
also  the  more  temperate  parts  of  the  west  from  the 
thickly  peopled  regions  of  the  south-west.  Western 
Australia  communicates  with  her  Eastern  sisters  only 
by  a  long  sea  voyage1.  She  is  almost  in  the  position 
held  by  California  when,  before  the  making  of  the  first 
transcontinental  railway,  people  went  from  New  York 
to  San  Francisco  via  Panama.  Nor  is  there  much  pro- 
spect that  settlements  will  arise  here  and  there  in  the  in- 
tervening desert. 

The  population  of  the  Continent,  which  has  now 
reached  nearly  4,000,000,  is  very  unequally  distributed. 
The  three  colonies  of  widest  area,  Western  Australia, 
South  Australia,  and  Queensland,  have  none  of  them 
500,000  inhabitants.  Tasmania  has  about  170,000.  Two 
others,  New  South  Wales  and  Victoria,  have  each 
more  than  1,000,000  2.  This  disparity  ranges  them  for 
political  purposes  into  two  groups,  the  large  ones  with 
2,500,000  people  in  two  colonies,  and  the  small  ones  with 
1,500,000  in  four  colonies. 

Against  these  two  sets  of  differences,  physical  and 
social,  which  might  be  expected  to  induce  an  opposition 
of  economic  and  political  interests,  there  is  to  be  placed 
the  fact  that  the  Australian  colonies  are  singularly  ho- 
mogeneous in  population.  British  North  America  is 
peopled  by  a  French  as  well  as  by  an  English  race, 
British  South  Africa  by  a  Dutch  race  as  well  as  an  Eng- 
lish. But  Australia  is  purely  British.  Even  the  Irish 
and  the  Scotch,  though  both  races  are  specially  prone  to 
emigrate,  seem  less  conspicuous  than  they  are  in  Ca- 
nada 3.  Australia  is  to-day  almost  as  purely  English  as 
Massachusetts,  Connecticut,  and  Virginia  were  in  1776, 

1  It  is  four  days'  voyage  from  Adelaide,  the  capital  of  S.  Australia,  to  Perth,  the 
capital  of  W.  Australia. 

4  Two-fifths  of  the  population  of  Victoria  live  in  Melbourne,  one-fourth  of  the 
population  of  New  South  Wales  in  Sydney. 

3  In  1891,  out  of  that  part  of  the  total  population  of  Australia  which  had  been 
born  in  the  United  Kingdom,  about  one-fourth  had  been  born  in  Ireland  and  one- 
sixth  in  Scotland.  Of  the  whole  population  of  Australia,  95  per  cent,  are  of  British 
stock. 


406  THE   AUSTRALIAN   VOMAIOXWEALTH 

and  probably  more  English  than  were  the  thirteen  origi- 
nal States  taken  as  a  whole.  In  this  fact  the  colonies 
found  not  only  an  inducement  to  a  closer  union,  but  a  se- 
curity against  the  occurrence  of  one  of  the  dangers  which 
most  frequently  threatens  the  internal  concord  of  a  fede- 
ration. Race  antagonisms  have  troubled  not  only  Ca- 
nada and  South  Africa  but  the  United  Kingdom  itself, 
and  they  now  constitute  the  gravest  of  the  perils  that  sur- 
round the  Austro-Hungarian  monarchy. 

Among  the  other  favouring  conditions  may  be  enu- 
merated the  use  of  one  language  only  (whereas  in  Ca- 
nada and  in  South  Africa  two  are  spoken),  the  existence 
of  one  system  of  law,  the  experience  of  the  same  form 
of  political  institutions,  a  form  modelled  on  that  which 
the  venerable  traditions  of  the  mother  country  have  en- 
deared to  Englishmen  in  all  parts  of  the  world.  It  has 
also  been  a  piece  of  good  fortune  that  religion  has  not 
interposed  any  grounds  for  jealousy  or  division.  The 
population  of  Australia  is  divided  among  various  Chris- 
tian denominations  very  much  as  the  population  of  Eng- 
land is,  and  the  chief  difference  between  the  old  and  the 
new  country  lies  in  the  greater  friendliness  to  one  an- 
other of  various  communions  which  exists  in  the  new 
country,  a  happy  result  due  partly  to  the  absence  of  any 
State  Establishment  of  religion,  and  partly  to  that  sense 
of  social  equality  which  is  strong  enough  to  condemn 
any  attempt  on  the  part  of  one  religious  body  to  claim 
social  superiority  over  the  others. 

Finally,  there  is  the  unique  position  which  Australia 
occupies.  She  has  a  perfect  natural  frontier,  because 
she  is  surrounded  by  the  sea,  an  island  continent,  so 
far  removed  from  all  other  civilized  nations  that  she  is 
not  likely  to  be  either  threatened  by  their  attacks  or 
entangled  in  their  alliances.  The  United  States  had. 
when  its  career  began,  British  possessions  on  the  north. 
French  and  Spanish  on  the  south.  But  the  tropical 
islands  which  Holland.  Germany  and  France  claim  as 
theirs  to  the  north  and  cast  of  the  Australian  coasts  are 


THE  AUSTRALIAN   COMMON  WEALTH  407 

cut  off  by  a  wide  stretch  of  ocean  1 .  They  are  not  now, 
and  are  not  likely  at  any  time  we  can  foresee,  to  con- 
tain a  white  population  capable  of  disturbing  the  repose 
of  Australia.  Such  a  country  seems  made  for  one  na- 
tion, though  the  fact  that  its  settled  regions  lie  scattered 
round  a  vast  central  wilderness  suggests  that  it  is  better 
fitted  for  a  federation  than  for  a  government  of  the  uni- 
fied type.  But,  on  the  other  hand,  this  very  remoteness 
might,  in  removing  the  force  of  external  pressure,  have 
weakened  the  sense  of  need  for  a  federal  union  had  there 
not  existed  that  homogeneity  of  race  and  that  aspiring 
national  sentiment  to  which  I  have  adverted. 

Compare  these  conditions  with  those  of  the  three 
other  Federations.  The  thirteen  colonies  which  have 
grown  into  the  present  forty-five  States  of  the  American 
Union  lay,  continuous  with  one  another,  along  the  coast 
of  the  Atlantic.  England  held  Canada  to  the  north  of 
them,  France  held  the  Mississippi  Valley  to  the  west  of 
them,  and,  still  further  to  the  west,  Spain  held  the  coasts 
of  the  Pacific.  They  had  at  that  time  no  natural  boun- 
daries on  land ;  and  the  forces  that  drew  them  together 
were  local  contiguity,  race  unity,  and  above  all,  the  sense 
that  they  must  combine  to  protect  themselves  against 
powerful  neighbours  as  well  as  against  the  evils  which 
had  become  so  painfully  evident  in  the  governments  of 
the  several  States.  Nature  prescribed  union,  though 
few  dreamt  that  Nature  meant  that  union  to  cover  the 
whole  central  belt  of  a  Continent.  In  the  case  of  Ca- 
nada, Nature  spoke  with  a  more  doubtful  voice.  She 
might  rather  have  appeared  to  suggest  that  this  long 
and  narrow  strip  of  habitable  but  only  partially  inhabited 
land,  stretching  from  the  Gulf  of  St.  Lawrence  to  Puget 
Sound,  should  either  all  of  it  unite  with  its  mighty  neigh- 
bour to  the  south,  or  should  form  three  or  four  separate 
groups,  separated  by  intervening  wildernesses.  Poli- 
tical feelings  however,  compounded  of  attachment  to 
Britain  and  a  proud  resolve  not  to  be  merged  in  a  rival 

1  The  nearest  point  of  Dutch  New  Guinea  is  about  150  miles  from  Australia. 


408  THE    WSTRALI&N  COMMOZTWEALTH 

power  which  had  done  nothing  to  conciliate  them,  led 
the  Canadians  to  form  a  confederation  of  their  own, 
which  Nature  has  blessed  in  this  point  at  least,  that  its 
territories  are  so  similar  in  climate  and  in  conditions  for 
industrial  growth  that  few  economic  antagonisms  seem 
likely  to  arise  among  them.  Switzerland,  however,  is 
the  most  remarkable  case  of  a  Federation  formed  by 
historical  causes  in  the  very  teeth,  as  it  might  seem, 
of  ethnological  obstacles.  Three  races,  speaking  three 
languages,  have  been  so  squeezed  together  by  formida- 
ble neighbours  as  to  have  grown  into  one.  The  help  of 
Nature  has  however  been  given  in  providing  them  with 
mountain  fastnesses  from  which  the  armies  of  those 
neighbours  could  be  resisted;  and  the  physical  charac- 
ter of  the  country  has  joined  with  the  traditions  of 
a  splendid  warlike  heroism  in  creating  a  patriotism 
perhaps  more  intense  than  any  other  in  the  modern 
world. 

V.  The  Constitution  as  a  Federal  Instrument. 

In  examining  any  Federal  Constitution,  it  is  con- 
venient to  consider  the  system  it  creates  first  as  a  Fede- 
ration, i.e.  a  contrivance  for  holding  minor  communi- 
ties together  in  a  greater  one ;  and  then  as  a  Frame  of 
Government,  composed  of  organs  for  discharging  the 
various  functions  of  administration.  Although  the  for- 
mer of  these  influences  the  latter,  because  the  federal 
character  of  a  State. prescribes  to  some  extent  the  cha- 
racter of  that  State's  governmental  machinery,  it  con- 
duces to  clearness  to  deal  with  these  two  aspects  sepa- 
rately. Accordingly  I  begin  with  the  federal  aspect  of 
the  Constitution. 

Federations  are  of  two  kinds.  In  some,  the  supreme 
power  of  the  Central  Governmenl  acts  upon  the  com- 
munities which  make  it  up  only  as  communities.  In 
Others  this  power  acts  directly,  not  only  upon  the  com- 
ponent communities,  but  also  upon  the  individual  citi- 


THE  AUSTRALIAN   COMMONWEALTH  409 

zens  as  being  citizens  of  the  Nation  no  less  than  of  the 
several  communities.  The  former  kind  of  Federation 
may  be  described  as  really  a  mere  League  of  States ;  the 
latter  kind  is  a  National  as  well  as  a  Federal  State. 

The  Australian  Federation  is  of  this  latter  type.  So 
are  the  United  States,  the  Swiss  Confederation,  and  the 
Canadian  Federation.  It  was  however  to  the  former 
type  that  both  the  United  States  before  1788  and  Swit- 
zerland before  1848  belonged.  So  Germany  was  a  mere 
League  of  States  before  1866,  but  has  been  a  National 
as  well  as  Federal  State  since  1866  and  1871. 

The  essential  feature  of  this  latter  type,  with  which 
alone  we  are  here  henceforth  concerned,  consists  in  the 
existence  above  every  individual  citizen  of  two  authori- 
ties, that  0/  the  State,  or  Canton  (as  in  Switzerland)  or 
Province  (as  in  Canada),  to  which  he  belongs,  and  that 
of  the  Nation,  which  includes  all  the  States,  and  operates 
with  equal  force  upon  all  their  citizens  alike.  Thus  each 
citizen  has  an  allegiance  which  is  double,  being  due  both 
to  his  own  particular  State  and  to  the  Nation.  He  lives 
under  two  sets  of  laws,  the  laws  of  his  State  and  the  laws 
of  the  Nation.  He  obeys  two  sets  of  officials,  those  of 
his  State  and  those  of  the  Nation,  and  pays  two  sets  of 
taxes,  besides  whatever  local  taxes  or  rates  his  city  or 
county  may  impose. 

Accordingly  the  character  of  each  and  every  Federa- 
tion depends  upon  the  distribution  of  powers  between 
the  Nation  and  the  several  States,  since  some  powers 
must  be  allotted  to  the  larger,  some  to  the  smaller 
entity.  With  regard  to  certain  powers  there  can  be  no 
doubt.  The  navy,  for  instance,  the  post-office,  the  con- 
trol of  all  foreign  relations,  must  obviously  be  assigned 
to  the  National  Government,  together  with  the  levying 
of  customs  duties  at  the  frontiers  and  the  raising  of  reve- 
nue for  the  purposes  above  mentioned.  On  the  other 
hand,  matters  of  an  evidently  local  nature,  such  as  police, 
prisons  and  asylums,  the  system  of  municipal  or  county 
administration,  with  the  power  of  taxing  for  these  pur- 


410  THE    YTJSTRALIA.H    COMMONWEALTH 

poses,  will  be  allotted  to  the  State  Governments.  But 
between  these  two  sets  there  lies  a  large  held  of  legisla- 
tion and  administration  which  may,  according  to  the 
circumstances  of  each  particular  country  and  the  wishes 
of  the  people  who  enact  their  constitution,  be  granted 
either  to  the  Nation  or  to  the  States.  The  law  of  mar- 
riage and  divorce,  for  instance1,  criminal  law1,  bank- 
ruptcy, the  traffic  in  intoxicating  liquors  2,  the  regulation 
of  railways2,  the  provision  of  schools  or  universities3, 
are  all  matters  which  have  both  a  national  and  a  local 
significance,  and  may  be  entrusted  either  to  the  National 
legislature  or  to  the  State  legislatures  according  as  one 
or  other  aspect  of  them  predominates  in  the  mind  of  the 
people. 

VI.  Distribution  of  Powers  between  Nation 
and  States. 

Now  the  fundamental  question  in  the  distribution  of 
powers  between  the  Nation  and  the  States  is  this — To 
which  authority  does  the  unallotted  residue  of  powers 
belong?  It  has  been  found  that  no  distribution,  how- 
ever careful,  can  exhaust  beforehand  all  the  powers  that 
a  legislature  or  an  executive  may  possibly  have  to  exer- 
cise, and  it  therefore  becomes  essential  to  provide,  when- 
ever a  power  not  specifically  mentioned  needs  to  be  ex- 
ercised, whether  it  should  be  deemed  to  be  rightfully 
exerciseablc  by  the  National  or  by  the  State  autho- 
rity. In  other  words,  which  of  these  authorities  is 
to  be  deemed  general  legatee  of  any  undistributed 
residue  ? 

This  question  has  been  answered  differently  by  dif- 
ferent Federations.  The  United  States  and  Switzerland 
leave  to  the  States  (to  which  they  had  belonged  pre- 

1  In  the  U.  S.  A.  a  State,  in  Canada  a  Federal  matter. 

"  In  Switzerland  a  Federal  matter,  in  the  U.  S.  A.  partly  a  Federal,  partly  a 
State  matter. 

3  In  the  U.  S.  A.  and  Germany  a  State  matter,  in  Switzerland  and  Canada  partly 
a  Federal  matter.' 


THE  AUSTRALIAN   COMMONWEALTH  411 

viously)  the  undistributed  powers.  Canada  (whose  Pro- 
vinces were  in  a  different  position)  bestows  them  upon 
the  National  (Dominion)  Government1.  The  question 
is  the  more  important,  because  it  creates  in  all  sorts  of 
doubtful  matters  a  presumption  in  favour  of  the  Na- 
tional Government  or  the  State  Governments,  as  the 
case  may  be.  And  it  is  specially  important  at  the  mo- 
ment of  creating  a  new  Federation,  because  one  of  the 
difficulties  always  then  experienced  is  to  induce  the 
States  to  resign  powers  they  have  hitherto  enjoyed. 
Hence  it  reassures  and  comforts  them  to  have  the  resi- 
due of  powers  not  specifically  distributed  left  still  in 
their  hands. 

The  Australians  have  followed  the  example  of  the 
United  States  and  Switzerland  rather  than  that  of  Ca- 
nada ;  and  they  have  done  so  for  the  sake  of  appeasing 
the  local  sentiment  of  the  several  colonies,  and  especially 
of  the  smaller  colonies,  who  naturally  feared  that,  as 
they  would  have  less  weight  than  their  larger  neighbours 
in  the  national  legislature,  they  would  be  in  more  danger 
of  being  subjected  to  laws  which  their  local  opinion  did 
not  approve.    Section  107  provides  that — 

'  Every  power  of  the  Parliament  of  a  Colony  which 
has  become  or  becomes  a  State  shall,  unless  it  is  by  this 
Constitution  exclusively  vested  in  the  Parliament  of  the 
Commonwealth  or  withdrawn  from  the  Parliament  of 
the  State,  continue  as  at  the  establishment  of  the  Com- 
monwealth, or  as  at  the  admission  or  establishment  of 
the  State  2,  as  the  case  may  be.' 

Comparatively  few  powers  of  legislation  are  '  exclu- 
sively vested  '  in  the  Commonwealth  Parliament ;  so  that 
upon  subjects  other  than  these  the  State  Parliaments 
retain  for  the  present  their  previous  power  to  legislate. 

1  See*U.  S.  A.  Constitution,  Amendment  X  :  Constitution  of  Swiss  Confederation, 
Art.  3  :  British  North  American  Act  (1867),  sect.  91. 

2  These  words  are  used  to  cover  the  case  of  the  creation  and  admission  of  future 
States. 

The  name  '  State,'  which  the  Australians  have  substituted  for  '  Colonies,'  is  sig- 
nificant. It  imports  a  slightly  greater  independence  and  has  a  more  imposing  sound 
than  the  Canadian  term  '  Province.' 


412  THE  AUSTRALIAN  COMMONWEALTH 

But  as  it  is  also  provided  that  all  Acts  of  the  Com- 
monwealth Parliament,  within  the  range  of  the  powers 
granted,  shall  override  laws  of  any  State  Parliament, 
such  laws  as  the  latter  may  pass  upon  subjects  open 
to  both  legislatures  are  left  at  the  mercy  of  the  Com- 
monwealth Parliament,  which  may,  as  and  when  it  finds 
time  or  occasion,  pass  Acts  extinguishing,  or  modifying 
the  effect  of,  those  enacted  by  the  States. 

Now  the  range  of  powers  granted  to  the  National  or 
Commonwealth  Parliament  is  very  wide,  wider  than  that 
of  Congress  or  of  the  Swiss  National  Assembly,  or  even 
of  the  Dominion  Parliament  in  Canada.  I  need  not  enu- 
merate the  powers  granted,  forty-two  in  number,  for 
they  will  be  found  in  sects.  52  and  53  of  the  Australian 
Constitution.  Among  them  are  the  following,  which  are 
not  specifically  given  to,  and  nearly  all  of  which  are  not 
even  claimed  by,  the  United  States  Congress : — Powers 
to  take  over  State  railways,  and  to  construct  and  extend 
railways  (with  the  consent  of  the  State  in  which  the 
railway  lies),  to  control  telegraphs  and  telephones  and 
also  trading  and  financial  corporations,  to  take  over 
State  debts1,  to  legislate  on  marriage  and  divorce,  on 
bills  of  exchange  and  promissory  notes,  on  invalid  and 
old-age  pensions,  on  arbitration  and  conciliation  in  trade 
disputes  (where  these  extend  beyond  one  State),  on 
bounties  on  the  production  or  export  of  goods,  on  the 
service  and  execution  throughout  the  Commonwealth 
of  the  civil  and  criminal  process  and  judgements  of  the 
State  Courts.  If  these  powers  come  to  be  all  put  in  force 
they  may  leave  for  State  action  a  narrower  and  less  in- 
teresting field  than  it  enjoys  in  the  United  States,  where 
nevertheless  the  State  legislatures  are  bodies  of  no  great 
account,  seldom  enlisting  the  services  of  men  of  first- 
rate  capacity. 

>  Canada  directs  the  Dominion  to  take  over  tin-  Provincial  debts  existing  at  the 
time  of  the  Union.  In  the  U.  S.  A.  the  war  debts  of  the  States  were  taken  over  by 
the  first  Congress  of  the  Union. 


THE  AUSTRALIAN   COMMONWEALTH  413 

VII.  Constitutional  Position  of  the  Austra- 
lian States. 

The  Australian  Constitution,  like  that  of  the  United 
States,  assumes  the  States  to  be  already  organized  com- 
munities, and  contains  nothing  regarding  their  consti- 
tutions. The  case  of  Canada  was  different,  because  there 
the  previous  government  of  the  Upper  and  Lower  Pro- 
vinces, which  had  been  one,  had  to  be  cut  in  two,  and  ar- 
rangements made  for  duly  constituting  the  two  halves. 
But  in  the  case  of  Australia,  the  pre-existing  constitu- 
tions of  the  Colonies,  granted  by  the  Imperial  Govern- 
ment at  various  times,  go  on  unchanged,  subject  only 
to  the  supersession  of  some  of  their  functions  by  the 
Commonwealth,  and  to  one  or  two  specifically  men- 
tioned restrictions.  That  these  restrictions  are  compa- 
ratively few  may  be  partly  ascribed  to  that  aversion 
which  the  English  everywhere  show  to  this  kind  of  safe- 
guard against  the  misuse  of  legislature  power.  The 
omnipotence  of  the  British  Parliament  seems  to  have 
fostered  the  notion  that  all  Parliaments  ought  to  be  free 
to  do  wrong  as  well  as  to  do  right.  The  only  things  from 
which  a  State  is  disabled  are  the  keeping  of  a  naval  or 
military  force  (except  with  the  consent  of  the  Common- 
wealth Parliament),  coining  money,  and  making  any- 
thing but  gold  and  silver  coin  legal  tender1.  A  State 
is  not,  as  are  the  American  States,  forbidden  to  grant 
titles  of  nobility,  or  to  pass  any  ex  post  facto  law  or  law 
'  impairing  the  obligation  of  contracts.'  That  no  such 
prohibitions  exist  in  Canada  may  be  ascribed  to  the  fact 
that  in  Canada  the  National  or  Dominion  Government 
has  the  right  of  vetoing  laws  passed  by  provincial 
legislatures,  so  that  improper  legislation  can  be  in  this 
way  checked.  The  power  is  not  often  exercised  in  Ca- 
nada, but  when  exercised  has  sometimes  led  to  friction. 
This  plan,  however,  is  neither  so  respectful  to  the  Pro- 

1  See  sections  1 14  and  1 15  of  Constitution,  and  compare  Art.  I.  sect.  10  of  Consti- 
tution of  U.  S.  A. 


414  TEE   AUSTRALIAN   COMMONWEAJjTE 

vinces  nor  so  conformable  to  general  principles  as  is 
the  American  plan,  which  leaves  the  States  subject  only 
to  the  restrictions  imposed  by  the  Constitution,  restric- 
tions which  ipso  iitrc  annul  a  law  attempting  to  transgress 
them.  And  the  Australians  have  wisely  followed  the 
American  rather  than  the  Canadian  precedent.  The 
Australians  have,  to  be  sure,  in  reserve  a  power  to 
which  nothing  similar  exists  in  America,  viz.  the  right 
of  the  British  Crown  at  home  to  veto  legislation.  Rarely 
as  this  right  is  put  in  force,  it  might  conceivably  be  used 
at  the  instance  of  the  National  Government  to  avert  an 
undesirable  conflict  between  State  statutes  and  National 
statutes.  Note  further  that  each  Australian  State  is 
left  as  free  to  amend  its  own  constitution  as  it  was 
before,  subject  of  course  to  the  veto  of  the  British 
Crown,  but  to  no  interference  by  the  Commonwealth, 
whereas  in  Canada  acts  of  the  Provincial  legislatures 
amending  their  constitutions  are  subject  to  the  veto 
of  the  Dominion  Government  as  representing  the 
Crown. 

The  omission  of  any  provision  similar  to  the  famous 
and  much  litigated  clause  which  debars  an  American 
State  legislature  from  passing  any  law  impairing  the 
obligation  of  contracts  is  especially  noteworthy.  That 
clause,  introduced  by  the  Philadelphia  Convention  in 
order  to  check  the  tendency  of  some  reckless  States  to 
get  rid  of  their  debts,  produced  in  course  of  time  un- 
expectedly far-reaching  results,  from  some  of  which 
.American  legislatures  and  courts  have  made  ingenious 
attempts  to  escape.  It  has  indeed  been  thought  that 
several  subsequent  decisions  of  the  Supreme  Court  are 
not  easily  reconcileable  with  the  famous  judgement  in 
the  Dartmouth  College  Case  (a.d.  1818),  in  which  the 
full  effect  of  this  clause  was  for  the  first  time  displayed. 
That  effect  has  been  to  fetter  legislation  in  ways  which 
are  found  so  inconvenient  in  practice  that  they  are 
acquiesced  ic  only  because  many  State  legislatures  are 
in  the  United  States  objects  of  popular  distrust.     No 


THE  AUSTRALIAN  COMMONWEALTH  415 

corresponding  distrust  seems  to  be  felt  in  the  British 
colonies,  and  therefore  the  Australians  have  not  deemed 
any  such  prohibition  needful,  following  the  example  of 
the  British  House  of  Commons,  which  in  1893  rejected 
a  similar  clause  when  moved  as  an  amendment  to  the 
Irish  Home  Rule  Bill  of  that  year. 

In  another  point  the  Australian  States  have  been 
treated  with  respect.  In  each  of  them  the  nominal  ex- 
ecutive head  has  hitherto  been  a  Governor  appointed 
by  the  British  Crown.  This  was  the  case  in  Canada 
prior  to  1867:  but  when  the  Canadian  Federation  was 
formed,  the  appointment  of  the  Governors  of  the  several 
provinces  was  entrusted  to  the  Governor-General  of  the 
Dominion,  that  is  to  say,  to  the  Dominion  Cabinet  by 
whose  advice  the  Governor-General,  being  a  sort  of 
constitutional  monarch,  is  guided.  In  practice,  there- 
fore, these  governorships  have  become  rewards  be- 
stowed upon  leading  party  politicians.  The  Austra- 
lians wisely  (as  most  Englishmen  will  think)  avoided 
this  plan.  Neither  did  they  adopt  the  American  method 
of  letting  the  people  of  each  State  elect  the  Governor, 
a  method  unsuited  to  government  on  the  Cabinet  sys- 
tem, because,  as  the  State  Governor  is  under  that  system 
only  a  nominal  head  of  the  Executive  (the  Cabinet  being 
the  real  Executive),  there  was  no  good  reason  for  set- 
ting the  people  to  choose  him,  and  good  reasons  against 
doing  so,  inasmuch  as  popular  elections  are  invariably 
fought  on  party  lines.  Accordingly  the  Australians  have 
preferred  to  let  him  continue  to  be  appointed  by  the 
Home  Government,  and  to  allow  him  to  communicate 
directly  with  the  Colonial  Office  in  London.  His  Mini- 
sters are  indeed  described  in  the  Constitution  (sect.  44) 
as  being  '  the  Queen's  Ministers.' 


416  THE  AUSTRALIAN  COMMONWEALTH 

VIII.  Differences  from  the  United  States 
and  Canadian  Federations. 

Four  other  remarkable  divergences,  from  both  the 
American  and  the  Canadian  Federal  systems,  remain 
to  be  mentioned. 

One  relates  to  the  judiciary.  In  the  United  States 
there  is  a  complete  system  of  Federal  Courts  ramify- 
ing all  over  the  Union  and  exercising  exclusive  juris- 
diction in  all  cases  arising  under  Federal  statutes,  as 
well  as  in  a  number  of  other  matters  specified  in  Art. 
III.  sect.  2  of  the  Constitution.  But  the  State  Courts 
remain  quite  independent  in  all  State  matters,  and  de- 
termine the  interpretation  of  the  State  Constitutions 
and  of  all  State  statutes,  nor  does  any  appeal  lie  from 
them  to  the  Federal  Courts.  In  Canada  this  was  not 
thought  necessary,  so  there  the  same  set  of  Courts 
deals  with  questions  arising  under  Federal  statutes  and 
with  those  arising  under  Provincial  Statutes,  and  the 
Supreme  Court  of  Canada  receives  appeals  from  all  other 
Courts.  This  is  less  conformable  to  theory  than  the 
United  States  plan,  but  does  not  seem  to  have  worked 
ill.  The  danger  that  Courts  sitting  in  the  Provinces 
would,  under  the  influence  of  local  feeling,  pervert  Fede- 
ral law  was  not  serious  in  Canada  (though  a  similar 
danger  was  feared  in  the  United  States  in  1787),  and 
indeed  all  the  Canadian  judges  are  appointed  by  the  Do- 
minion Government,  a  further  illustration  of  the  pre- 
ponderance which  the  Nation  has  over  the  Provinces. 
The  Australians  have  taken  a  middle  course.  They  have 
established  a  Federal  Supreme  Court,  to  be  called  '  The 
High  Court  of  Australia,'  and  have  taken  power  for  their 
Parliament  to  create  other  Federal  Courts.  So  far,  they 
follow  the  United  States  precedent.  But  they  have 
given  power  to  the  Commonwealth  Parliament  to  invest 
State  Courts  with  federal  jurisdiction,  thereby  allowing 
those  Courts  to  be,  as  in  Canada,  both  Slate  and  Federal. 
And  they  have  also  allowed  an  appeal  from  all  State 


THE  AUSTRALIAN  COMMONWEALTH         '       417 

Courts  to  the  Federal  High  Court.  By  this  plan  the 
States  are  more  directly  connected  with  and  subordinate 
to  the  National  Government  than  they  are  in  the  United 
States.  The  Australian  scheme  has  one  great  incidental 
advantage.  In  the  United  States  the  law  of  different 
States  may  and  does  differ,  not  only  in  respect  of  the 
difference  between  the  statutes  of  one  and  the  statutes 
of  another,  but  also  in  respect  of  questions  of  common 
law  untouched  by  statutes.  The  Supreme  Court  of 
Massachusetts  may,  for  instance,  take  a  different  view 
of  what  constitutes  fraud  at  common  law  from  that  taken 
by  the  Supreme  Court  of  Pennsylvania,  and  there  is  no 
Court  of  Appeal  above  both  these  Courts  to  bring  their 
views  into  accord.  This  has  not  happened  to  any  great 
extent  in  Australia,  because  the  British  Privy  Council 
has  entertained  appeals  from  all  its  Courts,  and  it  will 
happen  still  less  in  future,  because  the  Federal  High 
Court  will  be  close  at  hand  to  settle  questions  on 
which  the  Courts  of  different  States  may  have  been  in 
disaccord. 

A  second  point  shows  how  much  less  powerful  the 
sentiment  of  State  sovereignty  has  been  in  Australia 
than  it  was  in  the  United  States.  By  an  amend- 
ment (xi)  to  the  American  Constitution  made  in  1798 
it  is  expressly  declared  that  no  State  can  be  sued  by 
a  private  plaintiff.  But  Australia  expressly  grants 
jurisdiction  in  such  cases  to  its  Federal  High  Court 
(sect.  75). 

A  third  point  is  the  curious  and  novel  power  given 
to  a  State  of  referring  matters  to  the  Commonwealth 
Parliament,  and  to  that  Parliament  of  thereupon  legis- 
lating on  such  matters  (sect.  51  (xxxvii)).  Under  this 
provision  (which  is  not  to  be  found  in  the  Canadian  Con- 
stitution1) there  is  no  department  of  State  law  where- 
with the  National  legislature  may  not  be  rendered  com- 
petent to  deal.  It  may  be  usefully  employed  to  secure 
uniformity  of  legislation  over  all  Australia  on  a  number 

1  But  see  section  94  of  the  Canadian  Constitution, 

37 


41S  THE  AUSTRALIAN  COMMONWEALTH 

of  subjects  not  within  the  specifically  allotted  field  of  the 
Commonwealth  Parliament. 

Finally,  the  Commonwealth  Parliament  may  grant 
financial  assistance  to  any  State,  and  may  take  over  the 
whole  or  a  part  of  its  debts  as  existing  at  the  establish- 
ment of  the  Commonwealth  1.  Provisions  such  as  these 
imply,  or  will  involve  if  put  in  practice,  a  relation  be- 
tween the  National  Government  and  the  States  closer 
than  that  which  exists  in  America. 

To  complete  this  account  of  the  relation  of  the  Na- 
tion to  the  States,  let  it  be  noted  that  a  State  may  sur- 
render any  part  of  its  territory  to  the  Commonwealth, 
and  that  the  Commonwealth  is  bound  to  protect  each 
State  against  invasion  or,  on  the  application  of  the  Ex- 
ecutive of  the  State,  against  domestic  violence  2.  This 
latter  provision  is  drawn  from  the  United  States  con- 
stitution s,  though  in  America  it  is  from  the  State  legisla- 
ture, if  then  in  session,  that  the  application  for  protec- 
tion ought  to  come.  Australia  is  right  in  her  variation, 
because  in  her  States  the  Legislature  acts  through  the 
Executive.  Neither  provision  occurs  in  the  Constitu- 
tion of  Canada,  which  assigns  military  and  naval  defence 
exclusively  to  the  Dominion  Government,  and  makes 
itself  responsible  for  the  maintenance  of  order  every- 
where. In  Switzerland  the  management  of  the  army, 
in  which  all  citizens  are  bound  to  serve,  is  divided  be- 
tween Cantons  and  Confederation,  the  supreme  control 
remaining  with  the  latter  (Artt.  18-22).  The  Confedera- 
tion is  bound  to  protect  a  Canton  against  invasion  and 
disorders,  and  may  even  itself  intervene  if  the  Executive 
of  the  Canton  cannot  ask  it  on  its  own  motion  (Artt.  16 
and  17).  Australia,  as  we  have  seen,  allows  the  States  to 
maintain  a  force  with  the  consent  of  the  Commonwealth; 
and  this  is  permitted  by  the  American  Constitution  also. 

1  Sect.  105.  a  Sect.  119.  3  Art.  II.  sect.  3,  and  Art.  IV.  sect.  4. 


THE  AUSTRALIAN   COMMONWEALTH  419 


IX.  The  Constitution  as  a  Frame  of  National 
Government. 

We  may  now  pass  on  to  consider  the  National  Gov- 
ernment, the  construction  whereof  occupies  by  far  the 
greater  part  of  the  Constitution,  which,  while  it  left  the 
States  pretty  much  as  they  were,  had  here  to  build  up 
a  new  system  from  the  ground. 

The  first  point  to  be  examined  relates  to  the  limita- 
tions imposed  on  the  National  Government  as  against 
the  citizens  generally,  since  I  have  already  dealt  with  the 
limitations  on  its  powers  as  against  the  States.  Here  a 
remarkable  divergence  from  the  American  Constitution 
is  disclosed.  When  that  instrument  was  enacted,  the 
keenest  suspicion  and  jealousy  was  felt  of  the  action  of 
the  Government  to  be  established  under  it.  It  was 
feared  that  Congress  might  become  an  illiberal  oligarchy 
and  the  President  a  new  George  the  Third.  Accordingly 
great  pains  were  taken  to  debar  Congress  from  doing 
anything  which  could  infringe  the  primordial  human 
rights  of  the  citizen.  Some  restrictions  are  contained 
in  the  original  Constitution :  others  fill  the  first  nine 
amendments  which  were  passed  two  or  three  years  later, 
as  a  part  of  the  arrangements  by  which  the  acceptance 
of  the  Constitution  was  secured.  And  down  till  our  own 
time  every  State  Constitution  in  America  has  continued 
to  contain  a  similar  '  Bill  of  Rights  '  for  the  protection 
of  the  citizens  against  abuse  of  legislative  power.  The 
English,  however,  have  completely  forgotten  these  old 
suspicions,  which,  when  they  did  exist,  attached  to  the 
Crown  and  not  to  the  Legislature.  So  when  Englishmen 
in  Canada  or  Australia  enact  new  Constitutions,  they 
take  no  heed  of  such  matters,  and  make  their  legislature 
as  like  the  omnipotent  Parliament  of  Britain  as  they 
can.  The  Canadian  Constitution  leaves  the  Dominion 
Parliament  unfettered  save  by  the  direction  (sect.  54) 
that  money  shall  not  be  appropriated  to  any  purpose 


420  THE  AUSTRALIAN   COMMONWEALTH 

that  has  not  been  recommended  to  the  House  of  Com- 
mons by  the  Executive,  a  direction  embodying  English 
practice,  and  now  adopted  by  Australia  also.  And  the 
Australian  Constitution  contains  but  one  provision 
which  recalls  the  old-fashioned  Bill  of  Rights,  viz.  that 
which  forbids  the  Commonwealth  to  '  make  any  law  for 
establishing  any  religion  or  for  imposing  any  religious 
observance  or  for  prohibiting  the  free  exercise  of  any 
religion.'  The  Swiss  Constitution,  influenced  by  French 
and  American  models,  is  in  this  respect  more  archaic, 
for  it  imposes  a  series  of  disabilities  on  its  Legislature 
in  the  interest  of  individual  freedom  (sectt.  39,  49,  54-59). 
This  diversity  of  attitude  between  the  English  on  the 
one  hand  and  both  the  Americans  and  the  Swiss  on  the 
other  is  a  curious  instance  of  the  way  in  which  usage  and 
tradition  mould  a  nation's  mind.  Parliament  was  for  so 
long  a  time  the  protector  of  Englishmen  against  an  arbi- 
trary Executive  that  they  did  not  form  the  habit  of  tak- 
ing precautions  against  the  abuse  of  the  powers  of  the 
Legislature ;  and  their  struggles  for  a  fuller  freedom 
took  the  form  of  making  Parliament  a  more  truly  popu- 
lar and  representative  body,  not  that  of  restricting  its 
authority. 

The  point  just  examined  is  one  which  arises  in  all 
Rigid  Constitutions,  whether  Federal  or  Unitary.  But 
the  next  point  is  one  with  which  only  Federations  are 
concerned ;  and  it  is  one  in  which  all  the  great  Federa- 
tions agreee.  All  have  adopted  the  same  method  of 
providing  both  for  the  predominance  of  the  majority  of 
the  people  considered  as  one  Nation,  and  for  the  main- 
tenance of  the  rights  of  the  States  considered  as  distinct 
communities.  The  Americans  invented  this  method : 
the  Swiss,  the  Canadians,  the  Germans,  and  now  the 
Australians,  have  imitated  them.  This  method  is  to 
divide  the  Legislature  into  two  Houses,  using  one  to  re- 
present the  whole  people  on  the  basis  of  numbers,  and 
using  the  other  to  represent  the  several  States  on  the 
basis  (except  in  Germany)  of  their  equality  as  autono- 


THE  AUSTRALIAN  COMMONWEALTH  421 

mous  communities.  It  was  this  device  that  made  Fede- 
ration possible  in  the  United  States,  for  the  smaller 
States  would  not  have  foregone  their  independence  in 
reliance  upon  any  weaker  guarantee. 

X.  The  Legislature. 

The  Australian  scheme  provides  (sectt.  7-23)  for  an 
Upper  House  or  Senate  of  thirty-six  members,  six  from 
each  State,  and  a  House  of  Representatives  (sectt.  24-40) 
of  seventy-five  members,  elected  on  a  basis  of  popula- 
tion, so  that  forty-nine  members  will  come  from  the 
two  large  States,  New  South  Wales  and  Victoria,  and 
twenty-six  from  the  four  small  States.  No  Original 
State  is  ever  to  have  less  than  five. 

The  equal  representation  of  the  six  Original  States  is 
always  to  be  maintained,  but  the  number  of  Senators 
may  be  increased,  and  when  new  States  come  to  be 
formed,  the  Parliament  may  allot  to  them  such  number 
of  Senators  as  it  thinks  fit.  Senators  sit  for  six  years, 
and  do  not  all  retire  at  the  same  time.  These  features 
are  taken  from  the  Constitution  of  the  United  States, 
which,  as  already  observed,  has  been  a  model  for  subse- 
quent Federal  Upper  Houses.  But  there  are  remark- 
able variations  in  the  Australian  scheme. 

1.  In  the  United  States  each  newly-created  State  re- 
ceives as  a  matter  of  right  its  two  Senators.  In  Austra- 
lia the  Commonwealth  may  allot  such  number  as  it 
thinks  fit. 

2.  In  the  United  States  one-third  of  the  Senate  retires 
every  two  years.  In  Australia  one-half  retires  every 
three  years. 

3.  In  the  United  States  the  President  of  the  Senate 
is  the  Vice-President  of  the  United  States,  chosen  by 
the  people1.  In  Australia,  the  Senate  is  to  choose  its 
own  President. 

1  I.e.  practically  by  the  people,  though  formally  by  a  body  of  electors  elected 
for  that  purpose. 


[■::  Tin:  AUSTRALIAN  COMMONWEALTH 

4.  In  the  United  States  the  quorum  is  one  more  than 
a  half  of  the  total  number ;  in  Australia  one-third  of  the 
total  number. 

5.  In  the  United  States  the  Legislatures  of  the  several 
States  elect  the  Senators.  In  Australia  the  Senators 
are  elected  by  the  people  of  the  State. 

This  last  point  is  one  of  great  interest.  Tocqueville, 
writing  in  1832,  attributed  (erroneously,  as  the  sequel 
has  shown)  the  excellence  of  the  American  Senate  to 
the  method  of  election  by  the  State  Legislatures  1.  Since 
his  days  the  American  Senate  has  declined ;  and  so  far 
from  this  mode  of  election  having  tended  to  sustain  its 
character,  the  general,  though  not  unanimous,  opinion 
of  the  wise  in  America  deems  the  Senate  to  be  injured 
by  it,  and  desires  a  change  to  the  method  of  election  by 
direct  popular  vote.  It  was  partly  because  the  Austra- 
lian Convention  had  become  aware  of  this  tendency  of 
American  opinion  that  they  rejected  the  existing  Ameri- 
can plan ;  nor  is  it  impossible  that  the  Americans  them- 
selves may  alter  their  system,  which  gives  greater  oppor- 
tunities for  intrigue  and  the  use  of  money  than  popular 
election  would  be  likely  to  afford.  In  Australia,  the 
Senators  are  in  the  first  instance  to  be  elected  by  the 
people,  each  State  voting  as  one  electorate,  but  this 
may  be  altered  (e.g.  to  a  system  of  district  elections)  by 
the  Parliament  of  the  Commonwealth,  or  failing  its 
action,  by  the  Parliament  of  a  State.  It  will  be  interest- 
ing to  see  what  experiments  arc  tried  and  how  they 
work.  District  voting  may  give  different  results  from 
a  general  State  vote,  and  a  party  for  the  moment  domi- 
nant may  choose  the  plan  that  best  suits  it. 

6.  In  the  United  States  the  Senate  is  an  undying  body, 
perpetually  renewed  by  fresh  elections,  never  losing 
more  than  one-third  of  its  members  at  any  one  time. 
In  Australia  the  Senate  may  be  dissolved  in  case  a 
deadlock  should  arise  between  it  and  the  House  of 
Representatives. 

*  See  as  to  this,  Essay  VI,  i>.  316  and  p,  352. 


THE  AUSTRALIAN  COMMONWEALTH  423 

The  Senate  is  the  sheet-anchor  of  the  four  small 
States.  Commanding  a  majority  in  it,  they  have  con- 
sented to  acquiesce  in  the  great  preponderance  which 
their  two  larger  neighbours  possess  in  the  House  of 
Representatives.  The  numbers  of  the  latter  House  are 
to  be  always  as  nearly  as  practicable  double  those  of  the 
Senate,  a  point  whose  importance  will  presently  appear. 

The  House  is  to  continue  for  three  years  (subject  of 
course  to  dissolution),  a  term  intermediate,  though  in- 
clining in  the  democratic  direction,  between  the  two 
years  of  the  American  Congress  and  the  seven  (practi- 
cally six)  years  of  the  British  House  of  Commons.  The 
Canadian  term  is  five  years.  Until  the  Commonwealth 
Parliament  otherwise  provides,  the  electoral  suffrage 
is  to  be  (as  in  the  United  States)  the  suffrage  prescribed 
by  State  law  for  the  election  of  members  of  the  more 
numerous  State  House,  and  it  is  expressly  provided, 
doubtless  with  a  view  to  the  fact  that  women's  suffrage 
already  exists  in  two  colonies,  that  no  law  shall  prevent 
a  State  voter  from  voting  at  Commonwealth  elections. 
So  far  from  securing,  as  does  the  United  States  Consti- 
tution, that  no  person  shall  be  excluded  on  the  ground 
of  race  from  the  suffrage  1,  Australia  has  expressly  pro- 
vided that  persons  belonging  to  a  particular  race  may 
be  excluded,  for  she  declares  (sect.  25)  that  in  such  case 
the  excluded  race  is  not  to  be  reckoned  among  the  popu- 
lation of  the  State  for  the  purposes  of  an  allotment 
of  representatives.  Plural  voting  is  forbidden.  The 
quorum  of  members  is  a  mean  between  the  inconve- 
niently large  quorum  (one-half)  of  the  American,  and  the 
very  small  one  (forty)  of  the  British  House.  The  seat  of 
any  Senator  or  member  of  the  House  becomes  ipso  facto 
vacant  if  he  fails  (without  permission)  to  attend  any 
session  for  two  continuous  months.  No  person  having 
any  pecuniary  interest  in  any  agreement  with  the  public 
service  (except  as  member  of  an  incorporated  company 
of  at  least  twenty-five  persons),  or  holding  any  office  of 

1  See  Amendment  XV  to  the  Constitution. 


121  THE  AUSTRALIAN  COMMONWEALTH 

profit  under  the  Crown,  can  sit  in  either  House,  unless 
he  be  a  Minister  either  of  the  Commonwealth  or  of  a 
State.  The  exception  is  noteworthy,  not  only  because 
it  is  framed  with  a  view  to  the  establishment  of  Cabinet 
Government,  but  also  because  it  implies  that  a  man  may, 
contrary  to  American  and  Canadian  usage,  be  at  the 
same  time  both  an  executive  official  of  a  State  and  also 
a  member  of  the  Federal  Legislature.  It  would  appear 
that  women  are  eligible  to  membership  of  cither  House. 
Every  Senator  and  Representative  is  to  receive  a  salary, 
fixed  for  the  present  at  £400  ($2,000)  a  year. 

XI.  The  Executive. 

The  Executive  is  to  consist  of  the  Governor-General 
and  the  Ministers.  To  the  great  convenience  of  the 
Australian  people,  the  head  of  the  Executive  does  not 
need  to  be  elected  either  by  popular  vote  (as  in  the 
United  States)  or  by  the  Chambers,  as  in  France  and 
Switzerland.  He  is  nominated  by  the  British  Crown, 
and  holds  office  so  long  as  the  Crown  pleases,  receiving 
a  salary  fixed,  for  the  present,  at  £10,000  ($50,000)  a 
year  (exactly  the  salary  of  the  American  President).  He 
has  an  Executive  Council,  modelled  on  the  British  Privy 
Council  (though  the  name  Privy  Council  is  not  used 
as  it  is  in  the  Canadian  Constitution),  and  from  it  he 
chooses  a  number  of  Ministers  (fixed  for  the  present  at 
seven)  who  are  to  administer  the  several  departments 
of  the  public  service.  They  must  be  members  of  one  or 
other  House  of  Parliament — a  remarkable  provision,  for 
though  this  is  a  British  practice,  that  practice  has  never 
been  embodied  in  any  positive  rule.  As  the  Governor- 
General  is  only  a  constitutional  figure-head,  these  Mini- 
sters will  in  fact  constitute  the  ruling  executive  of  the 
Commonwealth. 


TUB  AUSTRALIAN    COM  M0\  WEALTH  425 

XII.  The  Judiciary. 

The  Judiciary  is  to  consist  in  the  first  instance  of  a 
Federal  High  Court  (containing  a  Chief  Justice  and  at 
least  two  other  judges)  capable  of  exercising  both  origi- 
nal jurisdiction  in  certain  sets  of  cases,  and  also  appel- 
late jurisdiction  not  only  from  single  Federal  Judges  and 
inferior  Federal  Courts,  but  also  from  the  Supreme 
Courts  of  the  States.  Power  is  taken  both  to  establish 
lower  Federal  Courts  and  to  invest  State  Courts  with 
federal  jurisdiction.  But  besides  this  Judiciary  proper, 
there  is  created  a  second  Court  for  dealing  with  cases 
relating  to  trade  and  commerce,  under  the  name  of  the 
Inter-State  Commission  (sect.  ioi).  This  remarkable 
and  very  important  institution  has  doubtless  been  sug- 
gested by  the  United  States  Inter-State  Commerce  Com- 
mission created  by  Congress  some  eighteen  years  ago 
in  order  to  deal  with  railway  and  water  traffic  between 
the  States.  Its  functions  will  be  half-administrative, 
half-judicial,  and  in  questions  of  pure  law  an  appeal 
will  lie  from  it  to  the  High  Court,  while  a  guarantee 
for  its  independence  is  found  in  the  clause  which  de- 
clares that  its  members  shall  not  be  removed  during 
their  seven  years'  term  of  office.  All  Federal  Judges 
are  to  be  appointed  by  the  Governor-General,  that  is 
to  say,  by  the  Executive  Ministry.  All  trials  (on  in- 
dictment) for  any  offence  against  the  laws  of  the  Com- 
monwealth shall  be  by  jury,  and  held  in  the  State  where 
the  alleged  offence  was  committed.  The  judicial  estab- 
lishments of  the  States  remain  unaffected,  and  the 
judges  thereof  will  continue  to  be  appointed  by  the 
State  Executives. 

In  determining  the  functions  of  the  High  Court  there 
arose  an  important  question  which  seemed  for  a  moment 
to  threaten  the  whole  scheme  of  Federation.  The  draft 
Constitution  which  the  Convention  had  prepared  and 
which  the  people  had  approved  by  their  vote  provided 
that  questions  arising  on  the  interpretation  of  the  Con- 


426  THE  AUSTRALIAN   COMMONWEALTH 

stitution  as  to  the  respective  limits  of  the  powers  of  the 
Commonwealth  and  of  the  States,  or  as  to  the  respec- 
tive limits  of  the  constitutional  powers  of  any  two  or 
more  States,  should  be  adjudicated  upon  by  the  High 
Court  of  the  Commonwealth,  and  that  no  appeal  should 
lie  from  its  decision  to  the  Queen  in  Council  (i.e.  to  the 
Judicial  Committee  of  the  Privy  Council  in  England, 
which  is  the  Supreme  Court  of  Appeal  from  the  British 
Colonies  and  India),  '  unless  the  public  interest  of  some 
part  of  Her  Majesty's  dominions,  other  than  the  Com- 
monwealth or  a  State,  are  involved.'  When  the  draft 
reached  England  to  be  embodied  in  a  Bill,  the  British 
Government  took  exception  to  this  provision  as  tending 
to  weaken  the  tie  between  the  mother  country  and  the 
colonies.  There  were  many  in  England  who  thought 
that  it  was  not  in  the  interest  of  Australia  herself  that 
she  should  lose,  in  questions  which  might  involve  poli- 
tical feeling  and  be  complicated  with  party  issues,  the 
benefit  of  having  a  determination  of  such  questions  by 
an  authority  absolutely  impartial  and  unconnected  with 
her  domestic  interests  and  passions.  How  much  better 
(they  argued)  would  it  have  been  for  the  United  States 
at  some  critical  moments  could  they  have  had  constitu- 
tional disputes  adjudicated  on  by  a  tribunal  above  all 
suspicion  of  sectional  or  party  bias,  since  it  would  have 
represented  the  pure  essence  of  legal  wisdom,  an  unim- 
peachable devotion  to  legal  truth ! 

To  this  the  Australians  replied  that  the  experience 
of  the  United  States  had  shown  that  in  constitutional 
questions  it  was  sometimes  right  and  necessary  to  have 
regard  to  the  actual  conditions  and  needs  of  the  nation ; 
that  constitutional  questions  were  in  so  far  political  that 
where  legal  considerations  were  nearly  balanced,  the 
view  ought  to  be  preferred  which  an  enlightened  regard 
for  the  welfare  of  the  nation  suggested;  that  a  Court 
sitting  in  England  and  knowing  little  of  Australia  would 
be  unable  to  appreciate  all  the  bearings  of  a  constitu- 
tional question,  and  might,  in  taking  a  purely  technical 


THE  AUtiTRALIAX   COMMONWEALTH  427 

and  possibly  too  literal  a  view  of  the  Constitution,  give 
to  the  Constitution  a  rigidity  which  would  check  its 
legitimate  expansion  and  aggravate  internal  strife. 
Australia  must — so  they  pursued — be  mistress  of  her 
own  destinies,  and  as  it  is  she  that  had  framed  and  pro- 
cured the  enactment  of  this  Constitution,  so  by  her 
ought  the  responsibility  to  be  borne  of  working  it  on 
its  judicial  as  well  as  its  executive  and  legislative  side. 
Not  only  was  this  better  for  Australia  herself,  but  it 
would  be  more  conducive  to  the  maintenance  of  the 
connexion  between  the  Commonwealth  and  the  mother 
country. 

After  some  wavering,  the  British  Government,  per- 
ceiving the  risk  of  offending  Australian  sentiment,  gave 
way.  They  dropped  in  Committee  of  the  House  of  Com- 
mons the  alteration  which  they  had  introduced  into 
the  Australian  draft,  substituting  for  it  an  amendment 
which,  while  slightly  varying  the  original  terms  of  the 
draft,  practically  conceded  the  point  for  which  the  Au- 
stralian Delegates,  sent  to  England  to  assist  in  passing 
the  measure,  had  contended.  The  Act  as  passed  pro- 
vides that  no  appeal  shall  lie  to  the  Crown  in  Council 
upon  the  constitutional  questions  above-mentioned  un- 
less the  High  Court  itself  shall,  being  satisfied  that  the 
question  is  one  which  ought  to  be  determined  by  the 
Privy  Council,  certify  to  that  effect.  In  all  other  such 
cases  its  judgement  will  be  final. 

Appeals  to  the  Privy  Council  in  questions  other  than 
constitutional  will  continue  to  lie  from  the  Supreme 
Courts  of  the  States  (with  the  alternative  of  an  appeal 
to  the  High  Court)  and  from  the  High  Court  itself,  when 
special  leave  is  given  by  the  Privy  Council.  The  Com- 
monwealth Parliament  may  limit  the  matters  in  which 
such  leave  may  be  asked,  but  the  laws  imposing  such 
limitations  are  to  be  reserved  for  the  pleasure  of  the 
Crown. 

The  scheme  of  judicature  above  outlined  follows  in 
the  main  the  model  contained  in  the  American  Consti- 


428  THE  M  8TBALIAN  (VMMo\  U  /;  1/.77/ 

tution.  It  docs  not  draw  the  line  between  State  and 
Federal  matters  and  courts  so  sharply,  for  appeals  arc 
to  lie  from  State  Courts  in  all  matters  alike,  and  State 
Courts  may  receive  jurisdiction  in  Federal  matters.  On 
the  other  hand,  it  is  more  conformable  to  principle  than 
either  the  Canadian  plan,  which  provides  no  Federal 
Courts  save  the  Supreme  Court  and  gives  the  appoint- 
ment of  all  judges  alike  to  the  Dominion  Government, 
or  the  Swiss  plan,  which  refers  questions  of  conflict  be- 
tween the  Nation  and  the  Cantons,  or  as  to  the  constitu- 
tionality of  Federal  laws,  not  to  the  Judiciary  at  all,  but 
to  the  Federal  Legislature.  Broadly  speaking,  the  Au- 
stralian High  Court  will  have  to  fill  such  a  place  and  dis- 
charge such  functions  as  have  been  filled  and  discharged 
in  America  by  that  exalted  tribunal  which  Chief  Justice 
John  Marshall  and  other  great  legal  luminaries  have 
made  illustrious.  In  working  out  the  provisions  of  the 
Constitution  by  an  expansive  interpretation,  cautious 
but  large-minded,  it  may  render  to  Australia  services 
not  unworthy  to  be  compared  with  those  which  America 
has  gratefully  recognized. 

XIII.  Working  of  the  Frame  of  Government. 
The  Cabinet. 

Now  let  us  see  how  this  Frame  of  Government,  which 
I  have  briefly  outlined  in  its  salient  features,  is  intended 
to  work. 

Its  essence  lies  in  a  matter  which  is  not  indicated  by 
any  express  provision,  the  dependence  of  the  Executive 
upon  the  Legislature.  Herein  it  differs  fundamentally 
from  the  American  and  Swiss  systems.  It  reproduces 
the  English  system  of  what  is  called  Cabinet  or  Respon- 
sible Government ;  that  is  to  say,  a  Government  in  which 
the  Executive  instead  of  being,  as  in  America,  an  inde- 
pendent authority,  directly  created  by  the  people  and 
amenable  to  the  people  only,  is  created  by  and  respon- 
sible to  the  Legislature.    As  and  when  the  British  colo- 


THE  AUSTRALIAN  COMMONWEALTH  429 

nies  respectively  obtained  self-governing  institutions, 
each  of  them  adopted  this  scheme,  since  it  was  the  one 
familiar  to  them  at  home :  and  to  it  they  seem  all  de- 
termined to  adhere. 

Its  distinctive  features  are  these. 

The  nominal  head  of  the  Executive,  in  Britain  the 
Crown,  in  Australia  the  Governor-General  as  represent- 
ing the  Crown,  is  permanent,  and  is  not  responsible  to 
the  Legislature,  because  he  acts  not  on  his  own  views, 
but  upon  the  advice  of  his  Ministers. 

The  Ministers  are  responsible  to  the  Legislature 
which  virtually  chooses  them,  and  they  depend  upon  its 
confidence  for  their  continuance  in  office. 

The  Ministers  are  however  not  wholly  at  the  mercy 
of  the  Legislature,  because  they  may  dissolve  it,  that  is 
to  say,  may  appeal  to  the  people,  in  the  hope  that  the 
people  will  elect  a  new  Legislature  which  will  support 
them.  This  kind  of  government  accordingly  rests  on 
a  balance  of  three  authorities,  the  Executive,  the  Legis- 
lature, and  the  People,  the  people  being  a  sort  of  arbiter 
between  Ministry  and  Parliament.  As  the  Ministry  can 
at  any  moment  appeal  to  the  people,  the  threat  of  ap- 
pealing puts  pressure  upon  the  Parliament,  and  keeps  a 
majority  cohesive.  In  the  existence  of  this  power  of 
sudden  dissolution  there  lies  a  marked  difference  from 
the  American  scheme,  which  some  one  has  called  As- 
tronomical, because  the  four  years'  term  of  office  of 
the  Executive  and  the  two  years'  term  of  the  Legis- 
lature are  both  fixed  by  the  earth's  course  round  the 
sun. 

I  have  spoken  of  the  Legislature  as  the  authority  to 
which  the  Ministry  is  responsible.  But  what  is  the 
Legislature?  In  England,  although  Parliament  con- 
sists of  two  Houses,  the  Minister-making  power  resides 
solely  in  the  House  of  Commons.  Being  elective,  the 
House  of  Commons  has  behind  it  the  moral  weight  of 
the  people  and  the  prestige  of  many  victories.  Being 
the  holder  of  the  purse,  it  has  the  legal  machinery  for 


430  THE  AUSTRALIA*    COMMONWEALTH 

giving  effect  to  its  will,  since  without  supplies  admini- 
stration cannot  be  carried  on.  Accordingly,  though  the 
existence  of  two  often  discordant  Houses  may  arrest  or 
modify  legislation  in  Britain,  it  does  not  affect  the  ex- 
ecutive conduct  of  affairs,  save  on  the  rare  occasions 
when  immediate  legislation  is  deemed  indispensable  by 
the  Executive.  The  same  remark  applies  to  Canada. 
There  also  one  finds  two  Houses,  but  the  Senate,  being 
a  nominated  and  not  a  representative  body,  holds  an 
entirely  secondary  place.  The  Ministry  may  disregard 
a  vote  of  want  of  confidence  passed  by  it,  just  as  in  Eng- 
land they  disregard  an  adverse  vote  of  the  House  of 
Lords.  In  Australia,  however,  things  will  be  quite  dif- 
ferent. There  the  Senate  has  been  constituted  as  a  re- 
presentative body,  elected  by  the  peoples  of  the  States ; 
and  as  the  protector  of  the  rights  and  interests  of  the 
States  it  holds  functions  of  the  highest  importance.  Its 
powers  (save  in  one  point  to  be  presently  mentioned) 
are  the  same  as  those  of  the  House.  In  whom  then  does 
the  power  of  making  and  unmaking  ministries  reside? 
Wherever  one  finds  two  assemblies,  one  finds  them  na- 
turally tending  to  differ ;  and  this  will  be  particularly 
likely  to  occur  wdiere,  as  in  Australia,  they  are  con- 
structed by  different  modes  of  election.  Suppose  a  vote 
of  no  confidence  in  a  particular  Ministry  is  carried  in 
one  House  and  followed  by  a  vote  of  confidence  passed 
in  the  other?  Is  the  Ministry  to  resign  because  one 
House  will  not  support  it  ?  It  retains  the  confidence  of 
the  other;  and  if  it  does  resign,  and  a  now  Ministry 
comes  in,  the  House  which  supported  it  may  pass  a 
vote  of  no  confidence  in  those  who  have  succeeded  it. 

The  problem  is  one  which  cannot  arise  either  under 
the  English  or  under  the  American  system.  Not  under 
the  English,  because  the  two  Houses  are  not  co-ordi- 
nate, the  House  of  Commons  being  much  the  stronger. 
Not  under  the  American,  because,  although  the  Houses 
are  co-ordinate,  neither  House  has  the  power  of  displac- 
ing the  President  or  his  Ministers.    It  is  therefore  a  new 


THE  AUSTRALIAN  COMMONWEALTH  431 

problem,  and  one  which  directly  results  from  the  attempt 
to  combine  features  of  both  schemes,  the  Cabinet  system 
of  England  and  the  co-ordinate  Senate,  strong  be- 
cause it  represents  the  States,  which  a  Federal  system 
prescribes. 

XIV.  Provisions  against  Deadlocks. 

This,  however,  is  only  one,  though  perhaps  the  most 
acute,  of  the  difficulties  that  arise  from  the  existence  of 
two  co-ordinate  Houses.  Their  differences  upon  ques- 
tions of  legislation  are  always  liable  to  produce  dead- 
locks. These  annoying  phenomena  occur  in  England, 
though  there  the  House  of  Lords,  except  upon  Irish 
questions,  usually  gives  way  (even  without  a  dissolution 
of  Parliament),  because  it  is  afraid  of  incensing  the  peo- 
ple and  thereby  bringing  about  its  own  destruction  if 
it  continues  to  resist  the  national  will.  In  Irish  ques- 
tions the  Upper  House  has  been  apt  to  assume  that  the 
people  of  England  and  Scotland  are  not  sufficiently  in- 
terested to  resent  very  keenly  its  difference  from  the 
Commons.  In  the  United  States  there  is  no  remedy  for 
such  deadlocks.  They  have  to  be  endured,  at  whatever 
cost.  The  resistance  of  the  Senate  to  various  plans  sug- 
gested by  the  House  for  dealing  with  the  slavery  ques- 
tion may  be  reckoned  among  the  causes  which  brought 
on  the  War  of  Secession.  The  Australian  colonies  them- 
selves have  had  frequent  experience  of  deadlocks  in 
matters  of  legislation  between  the  two  Houses,  for  in 
every  colony  there  have  been  two  Houses,  though  in 
every  colony  it  is  the  more  popular  House  which  has 
controlled  the  Executive. 

The  difficulties  I  have  indicated  were  fully  before  the 
minds  of  the  statesmen  who  sat  in  the  two  Conventions. 
An  ingenious  device  has  been  contrived  for  dealing  with 
them  (sect.  57).  When  the  House  passes  a  law  and  the 
Senate  disagrees,  the  House  may  pass  it  again  after 
three  months,  and  if  the  Senate  still  disagrees,  the  Gov- 


432  THE  AUSTRALIAN  COM  VOX  HEALTH 

ernor-General  may  thereupon  dissolve  both  House  and 
Senate  together,  unless  the  Parliament  is  within  six 
months  of  its  natural  end  by  effluxion  of  time.  If  after 
such  dissolution  the  new  House  again  passes  the  mea- 
sure, and  the  Senate  once  more  disagrees,  the  Governor 
may  convene  a  joint  sitting  of  both  Houses.  If  the  pro- 
posed law  is  then  passed  by  an  absolute  majority  of  the 
whole  Parliament  so  convened  in  joint  sitting,  it  shall 
be  taken  to  have  been  duly  passed  by  both  Houses. 

This  method  involves  the  expenditure  of  a  good  deal 
of  time  and  the  worry  of  a  double  general  election,  one 
for  the  House  and  one  for  the  Senate.  But  it  may  prove 
to  be  the  best  method  of  solving  a  problem  which  neither 
Britain  nor  the  United  States  has  yet  attempted  to  solve. 
and  which  certainly  needs  solution.  The  reader  who  re- 
members that  the  numbers  of  the  House  have  been  fixed 
to  be  always  double  those  of  the  Senate,  will  now  see 
how  necessary  such  a  provision  was  in  order  to  secure 
that  in  this  final  trial  of  strength  between  Senate  and 
House  the  principle  of  State  rights  and  the  principle  of 
population  shall  each  have  its  due  recognition.  Should 
these  two  principles  come  into  collision,  should,  for  in- 
stance, all  the  members  from  the  four  small  States  be  of 
one  mind  and  all  the  members  from  the  two  large  States 
of  another  mind,  the  principle  of  population  will  prevail, 
for  in  the  two  Houses  sitting  together,  the  large  States 
will  have  sixty-one  votes  (twelve  senators  and  forty-nine 
representatives),  whereas  the  small  States  will  have  only 
fifty  (twenty-four  senators  and  twenty-six  representa- 
tives).   Such  a  conjuncture  may  however  never  arise. 

XV.  Relations  of  the  Two  Houses. 

The  question  remains  which  of  the  two  Houses  will 
hold  the  place  of  the  British  House  of  Commons  as  de- 
termining the  tenure  of  office  by  Ministries.  Upon  this 
question  light  may  be  cast  by  the  provisions  with  regard 
to  money  bills.    The  Constitution  enacts  (sect.  53)  that 


TEE  AUSTRALIAN  COMMOXWEALTE  433 

all  bills  appropriating  revenue  or  imposing  taxation 
must  originate  in  the  House,  and  that  the  Senate  may 
not  amend  taxing  bills,  or  those  '  appropriating  money 
for  the  ordinary  annual  services  of  the  Government,' 
though  it  may  return  such  bills  to  the  House  suggesting 
certain  amendments  in  them.  The  Senate  may  however 
reject  such  bills.  As  this  scheme,  which  somewhat  re- 
sembles that  of  the  American  Constitution1,  itself  sug- 
gested by  the  practice  of  England,  seems  to  throw  upon 
the  House  the  primary  function  of  providing  money  for 
the  public  service,  and  thus  the  primary  control  of  the 
national  exchequer,  it  would  seem  that  Ministers,  un- 
able without  money  to  carry  on  that  service,  must  stand 
or  fall  by  a  vote  of  the  House  and  not  by  a  vote  of  the 
Senate.  Yet  the  Senate,  though  it  cannot  take  the  first 
steps  for  granting  money,  can  withhold  money ;  and  if 
it  does  so  in  order  to  get  rid  of  a  Ministry  it  dislikes, 
nothing  short  of  the  deadlock  provision  above  described 
can  be  invoked.  Nor  can  the  expedient  of  mixing  up  a 
number  of  different  taxing  provisions  in  one  Bill,  or 
inserting  other  matter  in  appropriation  Bills  ('tacking'), 
be  resorted  to,  for  these  are  expressly  prohibited  by  the 
Constitution  (sectt.  54,  55).  Possibly  in  practice  the 
Houses  will  frequently  agree  to  let  the  accustomed  ser- 
vices of  the  year  be  provided  for  without  much  contro- 
versy, and  will  reserve  their  serious  conflicts  for  new 
proposals  regarding  taxation  or  appropriation. 

Australians  evidently  expect  that  the  usage  hitherto 
prevailing  in  all  the  Colonies  of  letting  the  Ministry  be 
installed  or  ejected  by  the  larger  House  will  be  fol- 
lowed. Nevertheless  the  relations  of  the  Commonwealth 
Houses  are  so  novel  and  peculiar,  that  the  experience 
of  the  new  Government  in  working  them  out  will  deserve 
to  be  watched  with  the  closest  attention  by  all  students 
of  politics.    Englishmen  in  particular  have  good  reason 

1  In  the  U.  S.  A.,  however,  the  Senate  may  and  does  amend  both  revenue-rais- 
ing and  appropriation  bills,  and  indeed  frequently  prevails  against  the  House  in 
the  quarrels  which  arise  over  these  matters. 

28 


434  THE   AUSTRALIAN   COMMONWEALTH 

for  doing  so,  because  England,  when  she  has  substi- 
tuted a  representative  Second  Chamber  for  her  present 
theoretically  indefensible  House  of  Lords,  will  have  to 
devise  some  means  for  avoiding  or  solving  deadlocks  be- 
tween such  a  Chamber  and  the  House  of  Commons. 

Some  high  Australian  authorities  have  appeared  to 
doubt  whether  two  co-ordinate  Houses  can  be  made  to 
work  along  with  Cabinet  Government.  They  observe 
that  although  there  may  be  sometimes  a  willingness  to 
make  compromises  for  the  sake  of  the  public  service, 
there  is  also  in  all  governments,  and  certainly  not  least 
in  those  of  the  United  States  and  the  British  Colonies, 
a  tendency  to  press  every  legal  right  to  its  furthest  limit, 
even  if  the  machine  should  be  stopped  thereby.  Were 
such  stoppages  to  become  frequent,  Australia  might, 
they  think,  be  driven  to  amend  her  Constitution  by  so 
far  disjoining  the  Executive  from  the  Legislature  as  to 
give  it  something  of  the  permanence  it  enjoys  in  Amer- 
ica and  Switzerland1. 

The  relations  of  the  Senate  to  the  House  may  largely 
depend  on  factors  still  undetermined.  One  of  these  is 
the  growth  of  population.  Should  the  small  Colonies 
grow  rapidly,  their  representation  in  the  House  would 
before  long  be  fairly  proportionate  to  that  which  they 
enjoy  in  the  Senate,  so  that  the  balance  of  parties  might, 
so  far  as  the  size  of  States  is  concerned,  tend  to  be  nearly 
the  same  in  both  Houses.  Another  is  the  character  of 
the  controversies  which  will  arise.  These  may  not  be 
such  as  to  set  the  small  States  against  the  large  ones, 
and  the  three  party  organizations,  which  are  already 
strong,  though  they  possess  no  such  Machine  System  as 
America  enjoys,  may  find  their  support  pretty  equally  in 
all  or  most  of  the  States,  so  that  the  balance  of  parties 

1  It  was  suggested  ;n  ^e  Convention  by  Mr.  Playford  (then  Prime  Minister  of 
South  Australia)  that  the  two  Houses  sitting  together  might  appoint  the  Executive 
Ministry,  but  this  plan  deviated  too  far  from  British  Colonial  practice  to  find  ac- 
ceptance. A  similar  suggestion  was  made  by  Sir  John  Cockburn  in  the  Sydney 
Convention  in  1891.  See  his  speech  in  an  interesting  volume  published  by  him  en- 
titled Australian  Fedrratinn  (p.  139). 


THE  AUSTRALIAN  COMMONWEALTH  435 

may  in  practice  be  found  to  differ  but  little  in  the  Senate 
from  what  it  is  in  the  House.  Thus  these  particular 
wheels  or  shafts  of  the  constitutional  machine,  which  are 
deemed  less  able  than  others  to  bear  a  severe  strain, 
may  not  for  a  long  while  to  come  have  any  severe  strain 
thrown  upon  them. 

Another  thing  which  may  affect  the  relations  of  the 
two  Houses  is  the  comparative  attractions  which  each 
will  have  for  high  political  capacity.  In  the  United 
States  the  Senate  became,  within  thirty  years  from  the 
establishment  of  the  Constitution,  an  assembly  much 
stronger,  through  the  eminence  of  its  members,  than 
was  the  House  of  Representatives.  As  its  term  of  mem- 
bership was  longer  (six  years  against  two  years),  and 
as  it  had  certain  quasi-executive  functions  in  connexion 
with  foreign  relations  and  appointments,  men  of  ability 
preferred  it  to  the  House,  and  the  House  constantly 
saw  its  best  talent  drawn  off  to  its  rival.  The  Senate 
has  to-day  no  such  intellectual  ascendency  as  it  had 
then,  but  capable  men  still  migrate  to  it  when  they  can 
from  the  House  of  Representatives.  If  the  House  estab- 
lishes in  Australia,  as  it  will  apparently  do,  its  sole  right 
to  make  and  unmake  Ministries,  it  will  be  the  more 
tempting  field  for  ambition :  yet  something  will  depend 
upon  the  amount  of  genius  and  character  which  the 
Senate  attracts,  for  the  presence  of  these  in  abundant 
measure  will  give  it  weight  with  the  nation. 

It  has  been  suggested  in  Australia  that  the  Senate 
with  its  thirty-six  members  is  too  small.  The  Senate 
of  the  United  States  however  began  with  twenty-six; 
and  it  has  been  a  great  advantage  to  that  body  that  its 
original  numbers  were  small,  for  traditions  more  digni- 
fied than  those  of  the  tumultuous  House  were  formed, 
and  a  somewhat  stronger  sense  of  personal  responsibility 
was  developed  just  because  the  individual  was  not  lost 
in  a  crowd. 


436  THE   AUSTRALIAN   COMMONWEALTH 

XVI.  Miscellaneous  Provisions. 

Questions  of  trade  and  finance  fill  a  chapter  of  the 
Constitution  (sectt.  81-105);  and  it  was  indeed  these 
questions,  next  to  the  issue  between  the  large  and  the 
small  States,  that  gave  most  trouble  to  those  who 
framed  the  instrument.  It  is  provided  that  the  collec- 
tion and  control  of  all  duties  of  customs  and  excise 
shall  pass  to  the  Commonwealth,  but  that  not  more 
than  one-fourth  thereof  shall,  for  ten  years  at  least,  be 
retained  by  the  Commonwealth,  the  other  three-fourths 
being  paid  over  to  the  several  States,  or  applied  to  pay- 
ment of  the  interest  on  their  respective  debts,  should 
these  debts  be  assumed  by  the  Commonwealth.  This 
arrangement  was  deemed  needful  to  supply  the  States 
with  funds  for  defraying  their  administrative  expenses 
and  the  interest  on  their  debts,  seeing  that  the  chief  part 
of  their  revenue  arose  from  customs  and  excise,  the 
five  which  prepared  the  Constitution,  except  New  South 
Wales,  having  adopted  a  protective  policy.  Bounties 
may  be  given  either  by  the  Commonwealth,  or  by  the 
States  with  its  consent.  There  are  provisions  regard- 
ing the  collection  of  the  customs,  the  control  of  railways 
and  settlement  of  railway  rates,  the  use  of  rivers  for  ir- 
rigation and  water  storage,  and  the  State  debts,  but  as 
these  are  largely  temporary,  and  have  little  special  in- 
terest for  the  student  of  constitutions,  important  as  they 
are  to  Australian  industries,  I  mention  them  only  to 
show  how  elaborately  the  scheme  of  union  has  been 
worked  out,  and  on  how  many  perplexing  topics,  settled 
provisionally  by  the  Constitution,  the  Commonwealth 
Parliament  will  have  to  legislate. 

The  question  of  the  spot  where  the  capital  should  be 
placed  gave  rise,  as  had  happened  in  the  United  States 
and  in  Canada,  to  some  controversy.  It  was  adjusted 
by  providing  that  the  seal  of  Federal  government  should 
be  in  the  colony  of  New  .South  Wales,  but  at  least  100 
miles  from  Sydney.     Here  an  area   is  to  be  set  apart 


.THE  AUSTRALIAN  COMMONWEALTH  437 

of  not  less  than  ioo  square  miles,  which  shall  be  under 
the  jurisdiction  of  the  Commonwealth,  as  the  District 
of  Columbia  is  under  the  authority  of  the  National  Gov- 
ernment in  the  United  States  :  and  here  a  stately  city  will 
doubtless  in  time  spring  up. 

Power  is  taken  to  admit  new  States,  whether  formed 
out  of  existing  States  or  not,  upon  any  terms  and  condi- 
tions (e.g.  as  to  number  of  Senators)  which  the  Parlia- 
ment may  fix,  but  if  the  new  State  is  formed  out  of  an 
old  one,  only  with  the  latter's  consent.  The  Parliament 
has  also  full  power  to  accept  and  provide  for  the  ad- 
ministration of  any  territory  transferred  to  it  by  the 
Crown,  so  that  no  constitutional  questions  can  arise  re- 
sembling that  which  has  occupied  American  lawyers 
since  the  annexation  of  Puerto  Rico. 

XVII.  Amendment  of  the  Constitution. 

Last  of  all  we  come  to  the  mode  of  amending  the  Con- 
stitution, a  mode  easier  to  apply  than  that  prescribed  for 
the  United  States,  but  showing  the  influence  to  some 
extent  of  the  American  though  more  largely  of  the  Swiss 
model  in  its  reference  to  the  popular  vote. 

Every  law  proposing  to  alter  the  Constitution  must 
be  passed  by  an  absolute  majority  of  each  House,  and 
thereupon  (after  two  but  before  six  months)  be  sub- 
mitted to  the  voters  of  every  State.  If  in  a  majority  of 
States  a  majority  of  the  electors  voting  approve  the  pro- 
posal, and  if  these  State  majorities  constitute  a  majority 
of  all  the  electors  voting  over  the  whole  Commonwealth, 
the  amendment  is  passed,  and  is  then  to  be  presented  to 
the  Crown  for  assent.  Should  the  two  Houses  differ, 
one  passing  the  proposed  law  and  the  other  rejecting 
it  (or  passing  it  with  an  amendment  which  the  first- 
mentioned  House  rejects),  the  House  which  approves 
the  proposal  may  again  pass  it,  and  if  the  dissenting 
House  again  dissents,  the  amendment  may  be  submitted 
to  the  people  as  if  both  Houses  had  passed  it.    The  de- 


438  THE   AUSTRALIAN   COMMONWEALTH 

cision  of  the  people  is  final.  To  meet  the  fact  that  the 
suffrage  is  not  in  all  the  States  confined  to  men,  it  is 
further  provided  that,  in  any  State  wherein  all  adults  arc 
entitled  to  vote,  only  one  half  of  the  vote  shall  be 
counted  1. 

Thus  the  requirements  for  the  passing  of  an  Amend- 
ment are : — 

1.  Absolute  majority  in  each  House  of  Parliament, 
or  else  absolute  majority  in  one  House  given  twice,  the 
second  time  after  three  months'  interval,  plus  submission 
on  both  occasions  to  the  other  House. 

2.  Approval  of  the  people  in  a  majority  of  States  (i.e. 
at  present  in  four  States  at  least). 

3.  Approval  of  a  majority  of  the  people  voting  over 
the  whole  Commonwealth. 

The  American  Federal  Constitution  requires  a  two- 
thirds'  majority  in  each  House  of  Congress  and  a  three- 
fourths'  majority  of  States,  or  else  the  proposal  of  a 
Convention  by  two-thirds  of  the  States  and  a  three- 
fourths'  majority  of  States  approving  what  the  Conven- 
tion has  settled,  conditions  extremely  difficult  to  se- 
cure. The  Swiss  system  permits  the  Constitution  to  be 
amended  by  the  same  process  as  is  applied  to  the  passing 
of  laws,  plus  a  popular  vote  which  results  in  a  majority 
of  Cantons  and  in  a  majority  of  the  people  voting  over 
the  whole  Confederation. 

XVIII.  Relations  of  the  Australian  Commonwealth 
to  the  Crown. 

It  has  not  seemed  necessary  to  set  forth  the  relations 
of  the  Commonwealth  to  the  British  Crown,  because 
these  relations  are  substantially  those  which  have  here- 
tofore existed  between  the  Crown  and  each  of  the  self- 

1  Hut  'no  alteration  diminishing  the  proportionate  representation  of  any  State 
in  cither  House  of  the  Parliament,  or  the  minimum  number  of  representatives  of  a 
State  in  the  House  of  Representatives,  ^r  increasing,  diminishing  or  otherwise 
altering  the  limits  of  the  State,  Bball  become  law  unless  the  majority  of  the  electors 
voting  in  that  Stale  approve  the  proposed  law  '  (sect.  128). 


THE  AUSTRALIAN  COMMONWEALTH  439 

governing  colonies  now  united  in  the  Federal  Common- 
wealth. The  chief  difference  is  that  the  Commonwealth 
Parliament  receives  certain  powers  (as  to  extra-terri- 
torial fisheries  and  relations  with  the  islands  of  the 
Pacific)  which  were  previously  exerciseable  only  by  the 
(now  extinct)  Federal  Council  of  Australasia  (mentioned 
above),  that  it  has  a  general  power  to  legislate  on  '  ex- 
ternal affairs  '  (a  somewhat  vague  term,  sect.  51,  xxix), 
and  that  it  may  '  exercise  within  the  Commonwealth,  at 
the  request  or  with  the  concurrence  of  the  Parliaments 
of  all  the  States  directly  concerned,  any  power  which 
can  now  be  exercised  only  by  the  Parliament  of  the 
United  Kingdom  or  by  the  Federal  Council  of  Austra- 
lasia '  (sect.  51,  xxxviii).  Apart  from  these  provisions, 
which  may  give  rise  to  some  delicate  questions,  the  prin- 
ciples and  practice  which  have  guided  the  action  of  the 
Home  Government  and  of  the  Colonial  Governors  will 
apparently  be  preserved.  Though  the  Imperial  Parlia- 
ment has  an  unquestioned  right  to  legislate  for  every 
part  of  the  British  dominions  so  as  to  override  all  local 
legislation, it  does  not  now  exercise  this  power  except  for 
a  few  purposes  of  utility  common  to  all,  or  many,  British 
possessions,  such  as  for  the  regulation  of  merchant- 
shipping  or  copyright,  and  when  it  does  so,  it  secures  the 
assent  of  the  self-governing  Colonies.  So  again,  though 
the  Crown  has  the  legal  right  to  withhold  consent  from 
Colonial  Statutes,  this  right  is  rarely  exerted,  and  then 
only  in  respect  of  some  general  imperial  interest  which 
it  is  supposed  that  the  statute  in  question  may  preju- 
dicially affect,  i.e.  the  Crown's  right  is  not  exerted  in 
the  interest  of  any  class  of  persons  in  the  Colony  or  in 
pursuance  of  any  particular  view  entertained  either  by 
the  Governor  there  or  by  the  Ministry  at  home.  The  new 
Australian  Constitution  provides  (sectt.  58-60)  that 
when  a  measure  passed  by  the  Parliament  is  presented 
to  the  Governor-General,  he  may  either  assent  to  it  in 
the  Queen's  name  (but  subject  to  a  power  to  the  Queen 
to  disallow  the  same  within  one  year)  or  he  may  withhold 


140  ////:    \(  8TR  \IJ\.\    COMMON  WBALTB 

assent;  or  he  may  reserve  it  for  the  Queen's  pleasure, 
in  which  last  case  it  shall  not  take  effect  unless  he  an- 
nounces within  two  years  that  the  Queen  has  assented 
to  it.  This  right  of  veto,  though  it  looks  on  paper  larger 
than  that  which  belongs  to  the  President  of  the  United 
States,  seeing  that  the  President's  veto  can  be  overridden 
by  a  two-thirds'  majority  in  each  House  of  Congress, 
is  in  reality  far  more  limited,  and  will  constitute  no  check 
(except  where  imperial  interests  may  be  affected)  upon 
the  practically  sovereign  power  of  the  Commonwealth 
Parliament. 

XIX.  Comparison  with  the  Constitutions    of 
the  United  States  and  Canada. 

Before  I  make  some  general  reflections  on  the  cha- 
racter of  this  Australian  Constitution,  it  is  worth  while 
to  note  summarily  the  principal  points  in  which  it  differs 
from  the  two  other  Federal  Constitutions  which  it  most 
resembles. 

The  provisions  which  it  has  borrowed  from  the 
American  Constitution  have  been  already  adverted  to. 
It  differs  from  that  Constitution  in  the  following  (among 
other)  respects  : — 

i.  It  is  a  longer  instrument,  going  into  much  fuller 
detail  on  many  topics. 

2.  It  leaves  less  power  to  the  States  and  gives  more 
power  to  the  Commonwealth ;  and  it  enables  the  Com- 
monwealth Parliament  to  legislate  for  a  State  upon  the 
State's  request,  a  thing  which  lies  quite  outside  the  func- 
tions of  Congress. 

3.  It  does  not  establish  a  complete  system  of  Federal 
Courts  covering  the  whole  area  of  the  Commonwealth, 
but  allows  State  Courts  to  be  invested  with  Federal 
jurisdiction. 

4.  Tt  makes  the  Federal  Fligh  Court  a  Court  of  ap- 
peal from  State  Courts,  whereas  in  the  United  States 
each  State  Supreme  Court  is  final  in  its  proper  sphere. 


THE  AUSTRALIAN  COMMONWEALTH  441 

5.  It  contains  hardly  any  restrictions,  in  the  nature  of 
a  '  Bill  of  Rights,'  upon  the  power  of  the  Federal  Legisla- 
ture over  the  individual  citizen. 

6.  Instead  of  disjoining  Legislature  and  Executive, 
it  unites  them  closely  by  the  system  of  Responsible  or 
Cabinet  Government,  and  so  far  from  excluding  every 
official  from  Congress,  it  makes  a  seat  in  Parliament  a 
condition  of  Ministerial  office. 

7.  It  vests  the  choice  of  the  Head  of  the  Executive, 
not  in  the  people,  but  in  an  external  authority,  the 
British  Crown.  To  be  sure,  this  Head  is  nominal  and 
not  responsible  either  to  the  people  or  to  the  legis- 
lature. 

8.  It  vests  the  election  of  Senators  in  the  people,  not 
in  State  Legislatures,  gives  the  Senate  no  power  of 
amending  but  only  of  suggesting  amendments  in  money 
bills,  makes  the  Senate  dissoluble  in  case  of  a  deadlock 
between  it  and  the  House,  and  contemplates  the  possi- 
bility that  new  States  may  have  a  smaller  representa- 
tion in  the  Senate  than  original  States. 

9.  It  gives  to  the  Executive  no  such  veto  on  legis- 
lation as  the  President  has  in  the  United  States.  I  have 
already  explained  that  the  veto  of  the  Governor-General 
and  the  Crown  is  a  different  thing,  and  rarely  employed. 

10.  It  makes  the  amendment  of  the  Constitution  a 
much  less  tedious  and  difficult  process. 

Thus  it  may  be  said  that,  as  compared  with  the  Ameri- 
can Constitution,  it  vests  more  power  in  the  National 
Government  as  against  the  State  Governments,  and  that, 
as  between  the  various  departments  of  the  National 
Government  itself,  it  concentrates  power  more  fully  in 
the  hands  of  the  Legislature  and  imposes  fewer  restric- 
tions upon  its  action. 

The  Constitution  of  Canada  seems  at  first  sight  nearer 
to  that  of  Australia  than  does  the  American.  It  has  a 
Monarch,  represented  by  a  Governor-General,  for  the 
head  of  its  Executive.  It  contemplates  a  number  of 
States  small  when  compared  with  the  forty-five  of  the 


442  THE  AUSTRALIAN   COMMONWEALTH 

American  Union.  It  has  adopted  the  British  system  of 
Cabinet  or  responsible  Government. 

But  the  differences  are  really  so  considerable  as  to 
place  Australia's  scheme  as  far  from  that  of  her  colonial 
sister  as  from  the  American.  Among  them  are  the 
following : — 

i.  The  Canadian  Constitution  prescribes  the  Constitu- 
tions of  the  several  Provinces,  though  it  permits  the 
Provincial  legislatures  to  alter  them  (subject  to  a  Federal 
veto).  The  Australian  assumes  its  State  Constitutions 
as  existing,  and  makes  no  change  in  them,  except  so 
far  as  the  Federation  controls  or  supersedes  them. 
Hence  the  antecedent  power  of  changing  them  re- 
mains, so  far  as  they  are  not  affected  by  the  Federal 
Constitution. 

2.  Australia  leaves  to  the  States  all  residuary  powers 
(i.e.  powers  not  expressly  granted).  Canada  withholds 
them  from  the  Provinces  and  vests  them  in  the 
Dominion. 

3.  Australia  leaves  the  State  Governors  to  be  ap- 
pointed, as  now,  by  the  Home  Government,  apart  from 
Federal  interference.  Canada  gives  the  appointment  of 
them  to  the  Federal  Ministry.  And  whereas  in  Canada 
a  Provincial  Governor  cannot  communicate  directly  with 
home  but  only  with  the  Governor-General,  in  Australia 
the  State  Governor  and  his  Ministers  are  in  direct  touch 
with  the  British  Government  in  London. 

4.  Australia  gives  to  the  Federal  Government  no  right 
whatever  to  interfere  with  State  Statutes.  Canada  in- 
vests the  Dominion  Government  with  a  veto  on  Pro- 
vincial legislation  by  placing  the  Governor-General  as 
regards  such  legislation  in  the  place  which  the  Queen 
holds  as  regards  Dominion  legislation. 

5.  Australia  distinguishes  Federal  from  State  juris- 
diction, taking  power  to  establish  Federal  Courts  other 
than  her  High  Court,  and  to  invest  State  Courts  with 
Federal  jurisdiction.  Canada  has  no  special  Federal 
Courts  other  than  the  Supreme  Court  of  the  Dominion. 


THE  AUSTRALIAN   COMMONWEALTH  443 

6.  Australia  makes  her  Senate  an  elective  assembly. 
In  Canada  the  Senate  is  nominated  by  the  Dominion 
Government,  and  is  therefore  a  weak  body,  quite  unfit 
to  try  conclusions  with  the  House  which  has  the  people 
behind  it. 

7.  Australia  provides  a  method  whereby  the  Common- 
wealth may  amend  its  Constitution.  Canada  has  no  such 
method,  and  thereby  leaves  amendment  to  the  Imperial 
Parliament  of  the  United  Kingdom. 

This  comparison  shows  that  the  Australian  scheme 
of  Federal  Government  stands  intermediate  between 
that  of  the  United  States  and  that  of  Canada.  In  the 
United  States,  the  Federal  Government  has  less  power 
as  against  the  States  than  in  Australia.  In  Canada,  the 
Federal  Government  has  more  power,  or  at  least  a  wider 
range  of  action.  In  other  words,  the  Australian  sys- 
tem approaches  nearer,  in  point  of  form,  to  a  Unitary 
Government  than  does  the  United  States,  but  not  so 
near  as  does  Canada.  I  am  speaking  merely  of  form, 
that  is,  of  the  institutions  as  they  stand  on  paper,  for  it 
does  not  necessarily  follow  that  the  spirit  in  which  in- 
stitutions are  worked  will  precisely  correspond  to  their 
form.  The  old  Romano-Germanic  Empire,  for  instance 
(1638- 1806),  was  less  unitary  in  practice  than  would  have 
been  collected  from  its  form ;  the  new  German  Empire 
(since  1871)  is  more  unitary  in  spirit  and  working  than 
its  form  would  necessarily  convey. 

XX.  General  Observations  on  the  Constitution. 

Technically  regarded,  the  Constitution  is  an  excellent 
piece  of  work.  Its  arrangement  is  logical.  Its  language 
is  for  the  most  part  clear  and  precise.  The  occasional, 
and  perhaps  regrettable,  vagueness  of  some  expressions 
appears  due,  not  to  any  carelessness  of  the  draftsmen, 
but  to  the  nature  of  the  subject-matter.  The  cumbrous- 
ness  of  the  provisions  regarding  customs,  duties,  and 
the  control  of  railways  is  the  almost  inevitable  result  of 


Ill  THE  AUSTRALIAN   COMMONWEALTH 

an  effort  to  meet  the  claims  and  appease  the  apprehen- 
sions of  neighbouring  communities  with  interests  that 
have  been  deemed  opposed.  Although  it  is  much  longer, 
as  well  as  less  terse,  than  the  Constitution  of  the  United 
States,  going  into  fuller  detail,  and  with  more  of  the 
flavour  of  an  English  statute  about  it,  it  nevertheless, 
like  that  Constitution,  leaves  much  to  be  subsequently 
filled  up  by  the  action  of  the  legislature.  A  very  large 
field  of  legislation  remains  common  to  the  States  and 
the  Commonwealth  Parliament ;  and  though  statutes 
passed  by  the  latter  will  of  course  override  or  supersede 
those  which  may  have  been  passed  by  the  former,  it 
may  be  many  years  before  the  higher  Parliament  finds 
leisure  to  cultivate  all  the  ground  which  lies  open  before 
it.  A  further  range  of  activity  for  that  Parliament  may 
disclose  itself  if  the  State  legislatures  should  exert  the 
power  they  possess  of  asking  the  Commonwealth  to  take 
over  part  of  their  work.  And  apart  from  both  these 
lines  of  legislative  action,  the  Parliament  will  find  a  very 
large  number  of  matters  which  the  Constitution  has  ex- 
pressly directed  it  to  settle  by  statutes.  Till  such  statutes 
have  been  enacted,  many  points  material  to  the  working 
of  the  system  will  remain  undetermined. 

In  two  points  the  experience  of  the  United  States  has 
been,  consciously  or  unconsciously,  turned  to  account. 
The  complaint  has  often  been  made  in  America  that  the 
Constitution  contains  no  recognition  of  the  Supreme 
Being.  The  Australians  have  introduced  siich  a  recog- 
nition in  the  preamble  of  the  Imperial  Act  establishing 
the  Constitution,  which  runs  as  follows :  '  Whereas  the 
people  of  New  South  Wales,  Victoria,  South  Australia, 
Queensland,  and  Tasmania,  humbly  relying  on  the  bless- 
ing of  Almighty  God,  have  agreed  to  unite  in  one  in- 
dissoluble Federal  Commonwealth  under  the  Crown  of 
the  United  Kingdom,'  &c.  And  they  have  also  solemnly 
enounced  in  the  same  preamble  that  indissolubility  of 
their  union  which  the  Americans  did  not  enounce  in 
1788,  and  the  absence  of  which  from  the  instrument  gave 


THE  AUSTRALIAN  COMMONWEALTH  445 

rise  to  endless  argumentation  on  the  part  of  those 
who  maintained  the  right  of  a  State  to  retire  from  the 
Federation. 

The  perfection  of  any  Federal  system  may  be  tested 
by  the  degree  of  thoroughness  with  which  the  Federal 
principle  is  worked  out  in  its  application,  not  only  to 
the  legislative,  but  also  to  the  executive  and  judicial 
branches  of  government.  In  this  respect  the  Australian 
scheme  is  less  perfect  than  the  American;  for  the  Com- 
monwealth has  received  power  to  legislate,  no  doubt  at 
the  request  of  the  State,  on  purely  State  matters,  to 
return  to  the  States  part  of  the  revenue  it  collects,  and 
to  assume  the  pecuniary  liabilities  of  the  States.  There 
is  also,  as  already  noted,  no  such  effort  as  in  America 
to  secure  that  questions  of  State  law  shall  be  determined 
solely  by  State  Courts,  for  such  cases  may  be  appealed 
from  State  Courts  to  the  Federal  High  Court.  Thus 
the  Nation  looms  large  over  the  whole  instrument, 
overshadowing  the  States.  There  are  indeed  many  pro- 
visions for  safeguarding  the  interests  of  the  States,  yet 
these  are  not  so  much  recognitions  of  States'  rights  as 
stipulations  made  to  secure  material  advantages,  indus- 
trial or  commercial  or  financial.  An  explanation  of  this 
remarkable  feature  of  the  scheme  may  be  found  in  the 
phenomena  of  Australian  as  compared  with  those  of 
American  history.  The  thirteen  States  which  united  in 
1788-9  had  each  of  them  a  long  history.  The  two  oldest 
dated  back  to  the  beginning  of  the  seventeenth  century. 
The  youngest  had  nearly  sixty  years  of  political  life 
behind  it.  All  were  animated  by  a  strong  sentiment 
of  local  independence,  and  by  a  passion  for  liberty  which 
had  become  associated  with  local  independence.  Their 
notions  of  a  Unitary  Government  were  formed  from 
England,  whose  monarch  they  had  latterly  learned  to 
hate  as  their  oppressor.  '  Hence  their  love  for  their 
States  was  largely  sentimental.  Their  minds  were  filled, 
not  by  the  mere  sense  of  what  they  gained  from  their 
States  as  business  men,  but  by  the  loyalty  they  bore  to 


44G  THE  AUSTRALIAN   COMMONWEALTH 

their  States  as  protectors  of  their  civic  rights  and  em- 
bodiments of  their  historical  traditions. 

Very  different  were  the  feelings  of  the  Australians. 
The  oldest  colony  dated  back  scarcely  more  than  a  hun- 
dred years,  and  had  enjoyed  responsible  government  for 
less  than  fifty.  Proud  as  each  colony  was  of  its  progress, 
there  had  not  been  time  for  those  political  traditions  to 
be  formed  in  which  the  love  of  local  independence  roots 
itself.  Neither  were  there  between  the  several  colonies 
such  differences  of  origin  or  of  usages  and  ways  of  life 
as  separated  the  New  Englanders  from  the  men  of  Vir- 
ginia and  the  Carolinas,  for  the  Australians  had  emi- 
grated so  recently  from  Britain  that  no  local  types  had 
yet  been  formed.  Still  less  was  there  that  aversion  to  a 
Unitary  system  of  government  which  the  strife  with  Eng- 
land had  evoked  among  the  Americans.  The  only  politi- 
cal model  which  the  Australians  knew  at  first  hand  was 
the  government  of  Britain  by  its  Parliament,  a  govern- 
ment which  had  ceased  in  1832  to  be  oligarchic,  and  had 
since  1867  begun  to  be  democratic.  Accordingly,  among 
the  Australians,  State  feeling  had  a  thoroughly  practical 
and  business  character.  It  took  in  each  man  the  form  of 
a  resolve  to  secure  the  agricultural  and  trading  interests 
of  his  own  part  of  the  country.  It  was  in  fact  the  wish 
to  make  a  good  bargain  for  his  community  and  himself. 
Sentiment  there  was  and  is.  But  the  sentiment  gathered 
round  the  Commonwealth  of  the  future  rather  than  the 
Colony  of  the  past.  The  same  kind  of  feeling  which  at- 
tached the  sons  of  the  Cavaliers  to  Virginia  and  the  Puri- 
tans of  Massachusetts  to  the  old  '  Bay  State  '  made  the 
Australians  desire  to  found  a  great  nation  which  should 
be  the  mistress  of  the  Southern  seas.  Hence  the  absence 
of  any  jealousy  of  the  central  power  beyond  that  which 
is  suggested  by  the  fear  that  local  industrial  or  commer- 
cial interests  might  be  unfairly  dealt  with. 

This  attitude  of  Australian  feeling  will  therefore  (if 
the  view  here  presented  be  correct)  work  towards  the 
development  of  those  centralizing  tendencies  in  the  Con- 


THE  AUSTRALIAN  COMMONWEALTH  447 

stitution  for  which  its  terms  give  ample  scope.  In  all 
forms  of  polity  the  influences  which  draw  the  members 
of  a  composite  political  community  together  and  those 
which  thrust  them  asunder  are  partly  material,  partly 
sentimental1.  How  the  influences  of  material  interest 
will  work  in  Australia  I  will  not  attempt  to  predict. 
Some  of  them  may  prove  centrifugal ;  others,  such  as 
those  of  trade,  are  clearly  centripetal.  The  Constitu- 
tion frankly  recognizes  that  economic  conditions  pre- 
scribe a  federal  rather  than  a  unitary  government.  But 
it  is  a  significant  fact  that  the  influences  of  sentiment 
were  arrayed  on  the  side  of  the  Nation  rather  than  on 
that  of  the  States.  One  can  read  this  between  the  lines 
of  the  Constitution ;  and  it  explains  why  the  Frame  of 
Government  is  less  consistently  Federal  than  is  that  of 
the  United  States. 

XXI.  Modern  and  Democratic  Character  of 
the  Australian  Constitution. 

The  Australian  instrument  is  the  true  child  of  its  era, 
the  latest  birth  of  Time.  Compared  with  it,  the  Ameri- 
can Constitution  seems  old-fashioned,  and  parts  of  the 
Swiss  Constitution  positively  archaic.  Cabinet  Govern- 
ment, whose  fully  developed  form  is  scarcely  a  century 
old,  is  taken  for  its  basis.  Ideas  and  enterprises,  pro- 
blems and  proposals,  so  new  that  they  are  only  just  be- 
ginning to  be  seriously  discussed,  figure  in  it.  As  sla- 
very, an  institution  almost  coeval  with  the  human  race, 
but  essentially  barbarous,  survived  to  be  mentioned 
(under  a  transparent  euphemism)  in  the  Constitution 
of  the  United  States,  so  a  new  industrial  question — viz. 
the  struggle  between  white  labour  and  free  coloured 
labour — makes  its  appearance  in  this  Australian  docu- 
ment. Here  too  are  the  new  products  and  new  methods 
of  science,  telegraphs  and  telephones  and  the  keeping  of 
meteorological  observations ;  here  is  the  extension  of 

»  See  Essay  IV. 


448  TEE  AUSTRALIAN  VOMMOWYEALTH 

the  suffrage  to  women ;  here  are  the  new  troubles  which 
spring  from  contests  between  employers  and  workmen ; 
here  the  new  proposals  for  throwing  on  the  State  the 
function  of  providing  for  its  members  in  sickness  and 
old  age ;  here  an  express  recognition  of  the  right  of  a 
State  to  control  the  traffic  in  intoxicating  liquors.  And 
above  all  these  one  perceives  through  the  whole  instru- 
ment that  dominant  factor  of  our  age,  the  ever-present 
and  all-pervading  influence  of  economic  forces,  of  in- 
dustrial production,  of  commerce,  of  finance.  The  in- 
creased and  increasing  importance  of  these  influences 
in  the  life  of  the  modern  world,  stimulated  as  they  have 
been  by  the  amazing  progress  of  scientific  discovery, 
finds  a  fuller  expression  in  this  Constitution  than  in  any 
other  yet  framed. 

As  in  these  points  this  Constitution  is  at  least  abreast 
of  European  and  American  theory,  and  ahead  of  Euro- 
pean or  American  practice,  so  also  it  represents  the 
high-water  mark  of  popular  government.  It  is  pene- 
trated by  the  spirit  of  democracy.  The  actual  every- 
day working  of  government  in  the  Australian  Colonies 
is  more  democratic  than  in  Britain,  because  Britain  has 
retained  certain  oligarchical  habits,  political  as  well  as 
social.  It  is  more  democratic  than  in  the  United  States, 
because  there  both  the  States  and  the  Union  are  fettered 
by  many  constitutional  restrictions,  and  because  wealth 
has  there  (as  indeed  in  Britain  also)  been  able  to  exert 
a  control  none  the  less  potent  because  half-concealed. 
But  the  Constitution  of  this  Federal  Commonwealth  is 
more  democratic  than  arc  the  Constitutions  of  the  seve- 
ral Australian  colonies,  in  some  of  which  property  quali- 
fications and  nominated  second  chambers  have  survived 
till  now.  It  prescribes  no  qualification  for  a  Senator  or 
Representative  beyond  his  having  attained  the  age  of 
twenty-one  and  being  himself  qualified  to  become  an 
elector.  He  need  not  even  be  a  resident  in  the  State 
where  he  seeks  election.  The  Senate  as  well  as  the 
House  is  elective;  both  are  chosen  directly  by  the  peo- 


THE  AUSTRALIAN  COMMONWEALTH  449 

pie,  and  on  the  basis  of  the  suffrage  which  each  State 
prescribes  for  the  election  of  its  more  popular  House. 
The  duration  of  the  House  is  only  three  years.  The 
direct  popular  vote,  an  institution  specially  characteris- 
tic of  advanced  democracy,  which  has  been  developed 
independently  in  the  United  States  and  in  Switzerland 
(where  it  has  taken  the  double  form  of  a  Referendum  to 
the  people  and  an  Initiative  proceeding  from  the  peo- 
ple), is  here  applied  to  the  enactment  of  amendments  to 
the  Constitution,  and,  in  the  form  of  a  general  election 
of  both  Houses  simultaneously,  to  the  settlement  of 
deadlocks  between  the  Houses.  There  is  no  veto  on  the 
acts  of  the  Legislature,  for  that  vested  in  the  Governor- 
General  and  in  the  Crown  is  not  intended  to  be  used  ex- 
cept in  the  rare  cases  where  imperial  interests  may  be 
touched.  In  fact  all  those  checks  and  balances  in  the 
English  and  American  Constitutions  by  which  the  cen- 
sors of  democracy  used  to  set  such  store,  have  here 
dwindled  down  to  one  only,  viz.  the  existence  of  two 
Chambers.  These  two  will  be  elected  on  the  same  fran- 
chise and  composed  of  similar  men,  but  the  tendency 
to  dissension  so  natural  to  rival  bodies  may  sometimes 
interpose  delays  and  ought  certainly  to  make  the  criti- 
cism of  proposals  more  searching.  If  the  principle  of 
popular  sovereignty  is  expressed  with  equal  clearness 
in  the  Constitutions  of  America  and  Switzerland,  it  as- 
sumes in  this  Australian  Constitution  a  more  direct  and 
effective  form,  because  many  of  the  restrictions  which  the 
two  former  constitutions  (and  especially  that  of  Amer- 
ica) impose  on  the  legislature  in  the  supposed  interests 
of  the  people  are  absent  from  the  Australian  instrument. 
In  Australia  the  people,  through  their  legislature  with 
its  short  term,  are  not  only  supreme,  but  can,  by  the 
legislature's  control  of  the  Executive,  give  effect  to  their 
wishes  with  incomparable  promptitude.  For  this  pur- 
pose, the  expression  '  people  '  practically  means  the 
leader  who  for  the  time  being  commands  the  popular 
majority.  Holding  in  his  hand  both  the  Executive 
29 


450  THE  M  si'h'MJAX   COMM02TWEALTH 

power  of  the  Cabinet  and  the  legislative  power  of  Parlia- 
ment, he  has  opportunities  of  effecting  more  than  any 
one  man  can  effect  under  the  constitutions  either  of 
America  or  of  Switzerland. 

The  solitary  restraint  which  Australia  provides  is  the 
co-ordinate  authority  of  the  Senate,  a  hostile  majority 
in  which  may  check  or  at  least  delay  his  legislative  pro- 
jects. Yet  if  his  party  in  the  country  be  well  organized 
and  his  programme  alluring  to  the  masses  he  may  con- 
trol the  Senate  as  well  as  the  House,  for  it  does  not  fol- 
low that  because  the  smaller  States  have  prudently 
placed  their  interests  under  the  protection  of  the  Senate, 
they  will  on  the  great  issues  of  politics  be  usually  found 
opposed  to  their  larger  neighbours  ] . 

This  highly  democratic  character  of  their  Constitu- 
tion has  been  fully  appreciated  by  Australian  statesmen. 
The  effusiveness  with  which  they  dwell  upon  it  is  pro- 
bably more  sincere  than  even  that  which  is  displayed  by 
politicians  in  England,  America,  or  France,  when  they 
chant  the  praises  of  the  multitude.  Australians  are  as 
sanguine  in  their  temper  now  as  Americans  were  in  the 
days  before  the  clouds  of  Slavery  and  Secession  had 
begun  to  darken  their  sky. 

XXII.  Political  Party  in  Australia. 

Although  the  Constitution  says  no  word  about  politi- 
cal parties,  the  fact  that  it  contemplates  a  party  system  is 
written  over  it  in  bold  characters.  The  sages  of  the 
Philadelphia  Convention  of  1787  neither  intended  nor 
expected  that  the  scheme  they  devised  would  fall  into 
the  hands  of  parties.  Indeed  they  had  a  touching  faith, 
dispelled  as  soon  as  Washington  retired  from  the  scene, 
that  the  electors  who  were  to  be  chosen  to  elect  the 
President  would  select  the  best  man  in  the  nation  irre- 

1  In  the  first  election  of  members  of  the  two  Houses,  which  took  place  while 
these  pages  were  passing  through  the  press,  every  State  was  divided  upon  the  issue 
of  Free  Trade  versus  Protection,  though  the  Protectionist  (or  high-tariff)  party 
secured  more  seats,  in  proportion,  in  the  House  than  it  did  in  the  Senate, 


THE  AUSTRALIAN  COMMONWEALTH  4-')l 

spective  of  his  political  ties.  The  Swiss,  strange  as  it 
may  seem  to  men  of  English  or  Anglo-American  race, 
have  succeeded  in  keeping  their  Executive,  elected 
though  it  is  by  the  Chambers,  out  of  party  politics  alto- 
gether, nor  do  parties  dominate  the  legislature  and  co- 
lour the  public  life  of  the  nation  as  in  America  and  Eng- 
land. But  Government  of  the  English  '  Cabinet  type  ' 
is  essentially  party  Government,  that  is  to  say,  it  has 
been  so  hitherto  both  in  England  and  wherever  else  it 
has  been  tried,  and  no  one  has  yet  shown  how  it  can  be 
made  to  work  otherwise. 

In  America  the  great  parties  are  younger  than  the 
Constitution,  which  may  be  said  to  have  created  them. 
In  England  they  are  older  than  Cabinet  Government 
proper,  being  practically  contemporaneous  in  their  rise 
with  that  very  rudimentary  form  of  the  Cabinet  which 
began  to  emerge  in  the  time  of  King  Charles  II.  In 
Australia  every  colony  has  had  such  active  and  skilfully- 
organized  parties  that  no  one  doubts  but  what  the  Fede- 
ral Legislature  will  find  its  first  Ministry  forthwith  pro- 
vided with  a  competent  Opposition.  It  is  generally 
believed  that  the  tariff  will  furnish  the  first,  and  for  some 
time  the  main,  ground  of  party  division,  for  the  new 
Government  must  begin  by  providing  itself  with  an  ade- 
quate revenue ;  the  chief  part  of  that  revenue  must  be 
raised  by  indirect  taxation,  and  the  issue  of  Free  Trade 
versus  Protection  has  for  years  past  been  a  burning  one 
in  the  largest  Colonies. 

I  have  observed  that  the  Australian  scheme  contem- 
plates a  party  system  to  work  it.  But  what  sort  of  a 
party  system?  Obviously  one  in  which  there  are  two 
parties  only,  each  cohesive,  each  prepared  to  replace  its 
antagonist  in  the  Executive.  Such  was  the  party  system 
of  England  till  the  present  generation.  Such  has  been 
the  party  system  of  the  United  States.  Exceptions  in- 
deed there  have  been,  such  as  the  Know-Nothing  party 
in  1852,  the  Greenback  party  in  1876,  the  Populist  party 
which  arose  in  1889,  and  is  not  quite  extinct  now  (Febru- 


452  T1IK   AUSTRALIA*    COM M0XWKALTI1 

ary  1901).  In  the  United  States  the  power  of  the  two 
great  organizations  is  so  vast,  and  the  cost  of  creating 
a  new  party  so  deterrent,  that  a  third  organization  sel- 
dom appears,  and  if  it  appears,  presently  disappears. 
But  in  France  there  have  been  and  are  several  parlia- 
mentary gronps,  which  frequently  change  their  attitnde 
towards  one  another,  sometimes  combining  to  support 
a  Ministry,  sometimes  falling  asunder  and  leaving  it  to 
perish,  because  one  group  alone  was  not  sufficient  to 
sustain  it.  Hence  the  lives  of  Cabinets  have  been  short, 
and  would  have  been  still  shorter  but  for  the  fact  that 
an  imminent  peril  to  republican  government  itself  has 
sometimes  compelled  the  various  republican  groups  to 
hold  together.  In  Britain  the  same  difficulty  became 
acute  from  1880  onwards,  as  the  Irish  Nationalists  con- 
solidated themselves  in  a  distinct  Third  Party;  and  it 
may  at  any  moment  create  serious  embarrassment.  It 
exists  in  Germany  also,  and  in  the  Reichsrath  of  the 
Austrian  half  of  the  Austro-Hungarian  Monarchy. 
Xow  in  several  of  the  Australian  Colonial  Parliaments 
a  Labour  party  has  recently  arisen,  which,  keeping  itself 
independent  of  the  two  older  parties,  can  throwr  its 
weight  on  one  or  the  other  side  and  endanger  the  sta- 
bility of  Cabinets.  Should  this  phenomenon  reappear 
in  the  Parliament  of  the  Commonwealth,  it  will  com- 
plicate still  further  a  position  which  the  co-ordinate 
powers  of  Senate  and  House  make  complicated  enough 
already1. 

XXIII.  Political  Issues  likely  to  arise 
in  Australia. 

The  mention  of  parties  suggests  another  question,  the 
last  I  shall  attempt  to  discuss,  viz.  the  lines  on  which 
the  political  life  of  Australia  is  likely  to  move  under  her 
new  Constitution.     It  is  a  topic  on  which  little  will  be 

1  Since  these  lines  were  written,  the  phenomenon  has  reappeared,  for  at  the  first 
elections,  held  in  the  spring  of  i^oi.of  the  Senate  and  House,  the  Labour  party 
obtained  more  than  one-fifth  of  the  scats  In  each  Mouse. 


THE  AUSTKALIAX  COMMONWEALTH  453 

said  by  any  one  who  remembers  how  seldom  great  con- 
stitutional changes  have  been  followed  by  the  results 
prophesied  at  the  time.  The  Reform  Bill  of  1832  in 
Britain,  the  Civil  War  in  the  United  States,  the  union  of 
Italy  under  the  dynasty  of  Savoy,  not  to  speak  of  the 
French  Revolutions  of  1789  and  1848,  all  brought  forth 
fruits  very  different  from  those  predicted  by  some  of 
the  most  judicious  and  unbiassed  contemporary  ob- 
servers. Even  the  extension  of  the  suffrage  and  redis- 
tribution of  seats  effected  in  Britain  in  1884-5  were  fol- 
lowed by  a  shifting  of  the  balance  of  party  strength 
exactly  the  opposite  of  that  which  the  shrewdest  party 
politicians  had  expected.  But  without  attempting  fore- 
casts, one  may  try  to  indicate  certain  conditions  likely 
to  affect  the  development  of  Australian  national  and  po- 
litical life  under  the  new  form  which  this  Constitution 
gives  it. 

First  let  us  ask  what  are  the  controversies  likely  to 
occupy  the  nation  and  to  supply  a  basis  for  national 
parties? 

Taking  one  country  with  another,  it  will  be  found  that 
the  questions  on  which  men  have  grouped  themselves 
into  parties  may  be  classed  under  five  heads,  viz. : — 

1.  Questions  of  Race,  such  as  those  which  have  con- 
tributed to  distract  Ireland,  which  to-day  trouble  the 
Austrian  Monarchy  and  (as  respects  the  Poles)  the  Prus- 
sian Monarchy,  which  exist,  though  at  present  not  acute, 
in  Canada,  and  which  are  painfully  acute  in  South  Africa. 

2.  Questions  of  religion,  now  generally  less  formida- 
ble than  they  once  were,  yet  embittering  disputes  re- 
garding education  in  many  modern  countries. 

3.  Questions  relating  to  foreign  policy,  whether  as  to 
the  general  lines  on  which  it  should  be  conducted,  or  as 
to  the  attitude  to  be  held  towards  particular  States  at 
any  given  moment. 

4.  Questions  regarding  the  distribution  of  political 
power  within  the  nation  itself. 

5.  Questions    of    an    economic    or    economico-social 


4-Vi  THE  AUSTRALIAN  COMMONWEALTH 

kind,  e.g.  regarding  the  disposal  of  land  in  public  hands 
or  its  tenure  in  private  hands,  regarding  the  conditions 
of  labour,  regarding  taxation  and  finance,  the  policy  of 
Protection  or  Free  Trade,  the  policy  of  progressive  im- 
posts, the  propriety  of  assisting  particular  industries  or 
particular  classes  out  of  public  funds,  whether  national 
or  local.  Some  of  these  may  seem  to  be  rather  social 
than  economic,  but  it  will  be  found  upon  scrutiny  that 
it  is  their  economic  aspect,  i.e.  their  tendency  to  take 
money  from  or  give  money  to  some  class  in  the  com- 
munity, that  makes  them  bases  for  party  combination. 
A  purely  social  question  seldom  assumes  great  political 
significance. 

(i,  2)  Applying  this  classification  to  Australia  we  shall 
find  that  the  first  two  sets  of  questions  are  absent.  All 
the  people  are  of  practically  the  same  race.  None  are 
animated  by  any  religious  passion,  although  contro- 
versies have  sometimes  arisen  over  theological  teaching 
in  State  schools. 

(3)  Questions  of  foreign  policy  do  not,  strictly  speak- 
ing, come  within  the  scope  of  the  Commonwealth  Parlia- 
ment, because  they  belong  to  the  mother  country. 
Nevertheless,  it  cannot  be  doubted  that  the  Parliament 
will  from  time  to  time  interest  itself  in  them,  especially 
as  regards  the  isles  of  the  Pacific  and  of  the  Eastern 
Archipelago,  and  will  give  forcible  expression  to  its 
views  should  any  crisis  arrive.  One  can  well  imagine 
that  the  question  of  the  attitude  which  the  Common- 
wealth should  assume,  or  urge  the  mother  country  to 
assume,  towards  Germany  or  France,  or  Holland,  or 
even  towards  China  or  Japan  or  the  United  States,  when 
any  of  these  Powers  may  be  taking  action  in  the  West- 
ern Pacific,  might  give  rise  to  political  contention. 

(4)  As  respects  the  distribution  of  political  power  and 
the  structure  of  the  Federal  Government,  Australia  is 
so  democratic  already  that  it  cannot  go  much  further. 
It  will  doubtless,  however,  be  proposed  to  extend  to 
women  in  all  the  States  that  right  of  voting  at  Common- 


THE  AUSTRALIAN  COMMONWEALTH  455 

wealth  elections  which  they  already  enjoy  in  South  Au- 
stralia and  Western  Australia,  under  the  local  law,  or 
to  apply  more  widely  the  institution  of  the  direct  popular 
vote ;  or  to  amend  the  Constitution  in  some  point  which 
will  raise  an  issue  between  the  more  radical  and  the  more 
conservative  sections  of  opinion.  That  questions  of  con- 
stitutional amendment  have  played  so  small  a  part  in 
American  politics  may  be  attributed  to  the  extreme  dif- 
ficulty of  securing  the  majorities  required  for  altering 
the  Constitution.  In  Australia  the  process  will  be  far 
easier.  The  history  of  the  United  States  during  the  first 
seventy  years  of  the  Constitution  suggests  that  the  ques- 
tion of  the  respective  rights  of  the  Federation  and  of 
the  States  may  furnish  a  prominent  and  persistent  issue. 
This  is  quite  possible,  for  in  Federations  there  is  a  ten- 
dency for  many  controversies  of  various  kinds  to  con- 
nect themselves  with,  or  to  raise  afresh,  controversies 
regarding  the  true  construction  of  the  Federal  instru- 
ment as  respects  the  powers  which  it  assigns  to  the 
Nation  and  to  the  component  communities. 

(5)  It  is  however  questions  of  the  economic  order  that 
are  likely  to  occupy,  more  than  any  others,  the  minds 
and  energies  of  Australian  statesmen.  The  tariff  is  a 
practically  inexhaustible  topic,  because  apart  from  the 
general  issue  between  a  Protective  and  Free  Trade 
policy,  the  particular  imports  to  be  taxed  and  the  par- 
ticular duties  to  be  imposed  will  furnish  matter  for  de- 
bates that  can  hardly  have  finality,  seeing  that  cir- 
cumstances change,  and  that  the  financial  needs  of  the 
Government  will  increase.  It  need  hardly  be  said  that 
in  a  new  country  like  Australia  direct  taxation  is  difficult 
to  collect  and  highly  unpopular,  so  that  larger  recourse 
will  be  had  to  customs  and  excise  than  orthodox  econo- 
mists could  justify  in  Europe.  The  financial  relations 
between  the  Commonwealth  and  the  States  will  be  an- 
other fertile  source  of  controversy.  So  may  the  regula- 
tion of  the  railways,  which  the  Commonwealth  seems 
likely  to  take  over.    So  will  the  arrangements  for  secur- 


156  THE  AUSTRALIAN  COMMONWEALTH 

ing  the  respective  rights  of  different  States  as  regards 
both  irrigation  and  the  navigation  of  the  rivers,  practi- 
cally the  only  rivers  of  the  Continent,  which  intersect  the 
three  south-eastern  colonies.  Among  the  labour  ques- 
tions likely  to  arise,  one  problem,  much  before  the  minds 
of  Australians,  may  be  found  to  cause  difficulties  in  its 
details  if  not  in  its  general  principle ;  viz.  the  exclusion 
of  immigrants  of  coloured  race,  Chinese,  Japanese,  Ma- 
lays, and  Indian  coolies.  The  white  labourers  of  the 
temperate  colonies  have  been  strongly  opposed  to  the 
admission  of  such  strangers,  but  the  planters  of  the 
tropical  north,  who  have  used  the  labour  of  Pacific 
islanders  on  their  sugar  estates,  take  a  different  view  of 
the  case. 

Some  may  think  that  the  obvious  line  of  party  division 
will  be  found  to  be  that  which  ranges  the  four  smaller 
and  the  two  larger  States  into  opposite  camps.  If  this 
should  happen,  which  may  well  be  doubted,  it  will  be 
owing  to  a  coincidence  of  economic  interests,  and  not 
to  the  mere  fact  that  the  strength  of  one  set  of  States 
lies  in  the  House,  that  of  the  other  in  the  Senate.  The 
two  largest  States,  New  South  Wales  and  Victoria,  have 
hitherto  been  conspicuously  divergent  in  their  financial 
policy.  In  America,  though  the  small  States  fought  hard 
against  the  large  ones  in  the  Convention  of  1787,  the 
distinction  has  never  since  that  date  possessed  any  per- 
manent political  significance. 

If  parties  form  themselves  on  any  geographical  lines, 
the  line  will  more  probably  be  one  between  the  tropical 
and  the  temperate  regions.  These  tropical  regions  are 
at  present  much  less  populous  and  wealthy  than  is  the 
temperate  south-east  corner  of  the  Continent.  They  will 
doubtless  increase  both  in  wealth  and  in  population,  but 
as  the  strong  sun  forbids  out-door  labour  to  white  men, 
the  population  enjoying  political  rights  cannot,  for  gene- 
rations to  come,  be  a  large  one. 


THE  AUSTRALIAN  COMMONWEALTH  457 

XXIV.  Possible  Entrance  of  New  States. 

The  existing  situation  may  be  so  materially  affected 
by  the  entrance  of  new  States  that  one  naturally  asks 
what  are  the  prospects  that  new  States  will  be  admitted. 
As  the  whole  Continent  is  already  divided  among  the 
five  existing  States,  new  ones  can  come  into  being  only 
by  carving  up  the  three  larger  of  these.  There  has  al- 
ready been  talk  of  dividing  Queensland  into  two  or  per- 
haps three  States.  Others  might  be  formed  out  of  the 
now  sparsely  peopled  regions  of  the  north  and  north- 
west, when  they  have  become  more  thickly  inhabited. 
How  fast  the  process  of  colonization  will  advance  in 
these  regions  will  depend  upon  what  engineering  science 
may  be  found  able  to  do  for  the  more  arid  tracts  in  the 
way  of  storing  rain-water  and  raising  it  from  deep  wells, 
while  something  will  depend  on  the  disposition  of  the 
Federal  Government  to  spend  money  for  that  purpose. 
Nor  is  another  element  to  be  overlooked.  Vast  as  is 
the  mineral  wealth  already  known  to  exist  in  the  ex- 
plored parts  of  Australia,  it  may  be  equalled  by  that 
which  exists  in  regions  which  have  received  no  thorough 
geological  examination.  Should  mines  begin  to  be 
worked  in  the  arid  tracts,  an  additional  motive  would 
be  given  for  the  provision  of  water  supplies  there,  for 
the  existence  of  a  population  furnishing  markets  would 
stimulate  men  to  develop  the  capacities  of  the  soil  for 
ranching  and  even  for  tillage.  These  possibilities  show 
how  many  factors  hitherto  undetermined  may  go  to 
moulding  the  political  future  of  the  country.  The  in- 
crease of  population  in  regions  now  thinly  peopled  would 
either  make  the  four  smaller  States,  or  some  of  them, 
the  equals  of  the  larger,  or  would,  more  probably,  lead 
to  the  creation  of  new  States,  some  of  them  with  a  cha- 
racter different  from  that  of  the  two  which  now  com- 
mand a  decisive  majority  in  the  House  of  Representa- 
tives. As  the  settlement  of  the  Mississippi  Valley 
changed  American  politics,  so  a  filling  up  of  large  parts 


458  THE  AU8TSA  1.1  A  \    <<>M  UOXWEALTH 

of  the  interior  and  north  of  Australia,  unlikely  as  this 
now  appears,  might  affect  her  constitutional  growth  in 
ways  at  which  we  can  now  only  guess. 

At  present  not  only  these  tropical  regions,  but  also  the 
settled  parts  of  Western  Australia  are  separated  by  vast 
uninhabited  spaces  from  the  populous  south-east  corner 
of  the  continent.  Hence  just  as  in  Canada  an  Interco- 
lonial Railway  to  connect  Nova  Scotia  and  New  Bruns- 
wick with  Quebec  and  Ontario  was  provided  for  in  the 
Constitution  of  1867,  and  just  as  the  construction  of  the 
great  transcontinental  Canadian  Pacific  line  enabled 
Manitoba  and  British  Columbia  to  become  effective 
members  of  the  Federation,  so  a  line  of  railway  from 
east  to  west  across  Australia,  as  well  as  the  completion 
of  the  line,  already  partly  constructed,  from  the  south 
to  the  north,  are  among  the  political  needs  of  the  Com- 
monwealth, and  might  do  much  to  weld  its  people  into 
an  even  more  united  nation. 

One  community  remains  to  be  mentioned  whose  geo- 
graphical position  towards  Australia  recalls  the  saying 
of  Grattan  that  while  the  Ocean  forbade  Ireland  to  be 
politically  severed  from  Britain,  the  Sea  forbade  an  in- 
corporating union.  It  has  been  hoped  that  New  Zea- 
land would  enter  the  Federation,  and  she  has  herself 
seriously  considered  whether  she  ought  to  do  so.  With 
a  healthy  climate,  a  soil  generally  well  watered,  and  an 
area  not  much  less  than  that  of  the  British  Isles,  New 
Zealand  has  evidently  a  great  future  before  her.  The 
population,  now  between  700,000  and  800,000,  has  tripled 
within  the  last  thirty  years ;  and  the  level  of  personal 
comfort  and  well-being  is  as  high  as  anywhere  in  the 
world.  Her  accession  would  give  further  strength  to 
the  Federal  Commonwealth.  But  New  Zealand,  as  one 
of  her  statesmen  observed,  has  twelve  hundred  reasons 
against  union  with  Australia,  for  she  is  separated  from 
the  nearest  part  of  Australia  by  twelve  hundred  miles  of 
stormy  sea,  a  distance  more  than  half  of  that  which 
divides  Ireland  from  Newfoundland.    She  may  therefore 


THE  AUSTRALIAN   COMMONWEALTH  459 

think  that  some  sort  of  permanent  league  with  Austra- 
lia, for  the  purposes  of  combined  naval  defence  and  joint 
action  in  external  questions  of  common  concern,  would 
conform  better  to  her  outlying  position  than  would  par- 
ticipation in  a  Legislature  which  must  be  mainly  occu- 
pied with  the  affairs  of  Australia.  Of  the  subjects 
assigned  by  the  Constitution  to  the  Commonwealth  Par- 
liament, there  are  several  in  which,  because  purely  Au- 
stralian, New  Zealand  would  have  no  interest,  some  also 
with  regard  to  which  she  could  legislate  better  for  her- 
self than  the  Commonwealth  could  legislate  for  her,  in- 
asmuch as  her  economic  and  social  conditions  are  not 
the  same  as  those  of  Australia.  An  illustration  is  fur- 
nished by  the  difference  between  the  native  races  in  the 
two  countries.  The  Australian  aborigines,  one  of  the 
most  backward  branches  of  the  human  family,  are  ob- 
viously unfit  for  the  exercise  of  any  political  functions. 
They  are  not  permitted  to  vote  in  any  colony,  and  the 
Constitution  provides  that  in  determining  the  number 
of  representatives  to  be  allotted  to  a  State  they  shall 
not  be  reckoned  among  its  population.  But  the  Maoris 
of  New  Zealand  are  an  intelligent  folk,  to  whom  New 
Zealand  has  given  the  suffrage,  and  who  are  now  on 
excellent  terms  with  their  white  neighbours.  It  would 
no  doubt  be  possible  for  the  Commonwealth  Parliament 
to  legislate  differently  for  them  and  for  the  '  black  fel- 
lows '  of  Australia ;  but  their  dissimilar  character  shows 
the  difference  of  the  problems  which  arise  in  the  two 
countries.  New  Zealand  has  however  an  interest  in  ob- 
taining free  access  to  the  Australian  markets,  and  her 
final  decision  as  to  entering  the  Federation  may  be  in- 
fluenced by  the  commercial  policy  which  the  larger  coun- 
try pursues  *. 

In  this  changeful  world,  no  form  of  government  ever 
remains  the  same  during  a  long  series  of  years,  and  no 
Federation,  however  strictly  the  rights  of  its  members 

1  While  these  pages  were  passing  through  the  press,  a  Commission  appointed  in 
New  Zealand  to  consider  the  question  has  reported  strongly  against  her  entrance 
into  the  Australian  Federation. 


460  THE  AUSTRALIAN  COMMONWEALTH 

may  be  secured  by  a  Rigid  Constitution,  can  continue  to 
maintain  exactly  the  same  balance  of  powers  between 
the  Nation  and  the  States.  I  have  already  expressed  the 
opinion  that  the  tendency  is  in  Australia  likely  to  be 
rather  towards  consolidation  than  towards  a  relaxation 
of  the  Federal  bond,  because  not  only  national  senti- 
ment but  economic  influences  also  will  work  in  that  di- 
rection. Much  however  may  depend  on  a  factor  still 
unpredictable,  the  relations  between  Australia,  together 
with  the  British  Empire  generally,  and  the  other  Powers 
which  are  interested  in  the  Western  Pacific.  Nothing 
does  so  much  to  draw  together  a  people  already  homo- 
geneous as  the  emergence  of  issues  which  threaten,  or 
result  in,  a  struggle  against  foreign  States.  The  senti- 
ment of  internal  unity  is  accentuated.  Public  attention 
is  diverted  from  domestic  controversies.  Powers  are 
willingly  yielded  to  the  Executive  which  would  in  days 
of  peace  be  refused.  The  consequences  may  be  good 
or  evil — they  have  sometimes  been  in  the  long  run  evil 
— but  either  way  they  alter  the  character  of  the  govern- 
ment. They  may  even  give  a  new  direction  to  its  policy, 
as  the  United  States  has  recently,  and  quite  unexpect- 
edly, discovered. 

XXV.  Future  Relations  of  the  Australian 
Commonwealth  to  Britain. 

Australia  however  is  not  a  State  standing  alone  in 
the  world,  but  a  member  of  the  British  Empire,  so  we 
cannot  close  an  examination  of  her  Constitution  without 
asking  whether  the  union  of  her  Colonies  will  affect  her 
relations  to  the  mother  country. 

When  the  first  Convention  to  frame  a  Federal  Con- 
stitution assembled  in  1891,  most  Englishmen  supposed 
that  a  Federated  Australia  would  soon  aspire  to  com- 
plete independence.  Australian  statesmen  saw  deeper, 
and  predicted  that  the  formation  from  the  several  Co- 
lonies of  an  Australian  Nation  would  tend  not  to  loosen, 


TEE  AUSTRALIAN  COMMONWEALTH  461 

but  rather  to  draw  closer  the  ties  that  unite  the  people 
to  Great  Britain.  So  far  as  can  be  judged  from  the 
course  of  Australian  opinion  during  the  past  ten  years, 
this  has  been  the  result.  There  were  at  first  some  who 
advocated  Federation  as  a  means  to  independence.  But 
they  soon  desisted,  overborne  by  a  different  current. 
The  same  National  feeling  through  which  Federalism 
triumphed  seems  to  have  deepened  the  sense  of  unity 
with  other  members  of  the  British  race.  And  possibly 
that  suspicion  which  colonies  are  apt  to  feel  of  a  sort 
of  patronage  on  the  part  of  the  mother  country,  and 
which  sometimes  disposes  them  to  be  self-assertive,  may 
have  vanished  as  they  came  to  realize  that  the  old  coun- 
try was  proud  of  them  and  wished  to  treat  them  not  only 
as  a  daughter  but  as  an  equal.  Neither  do  they,  demo- 
crats as  they  are,  harbour  distrust  of  a  monarchy,  or 
deem  their  freedom  in  any  way  hampered  by  it.  The  love 
for  republicanism  in  the  abstract,  though  far  stronger 
in  Continental  Europe  than  in  England,  was  everywhere 
a  force  in  the  first  half  of  the  nineteenth  century.  It  has 
faded  away  in  the  second  half  throughout  the  British 
world,  because  the  solid  substance  of  freedom  has  been 
secured,  because  the  old  mischiefs  of  monarchical  gov- 
ernment have  reappeared  in  republics,  because  men's 
minds  have  begun  to  be  occupied  with  economic  and 
social  rather  than  with  purely  political  questions.  The 
fact  that  the  British  Crown  is  titular  head  of  the  Au- 
stralian Commonwealth  will  not  render  the  working  of 
the  Constitution  less  truly  popular,  any  more  than  has 
befallen  in  Canada,  a  somewhat  less  democratic  country. 
So  far  as  the  internal  politics  of  Australia  are  concerned, 
she  will  take  her  own  course,  scarcely  affected  by  her  con- 
nexion with  England.  But  the  fact  that  she  is,  and  seems 
likely  to  remain,  a  part  of  the  British  Empire,  sharing 
in  the  enterprises  and  conflicts  and  responsibilities  of 
that  vast  body,  is  a  fact  of  the  highest  moment  for  her 
future  and  for  the  future  of  the  world.  Still  more  mo- 
mentous  might   her   relation   to   the    Empire   become 


462  THE  AUSTRALIAN   COMMOXWEALTH 

should  any  scheme  be  devised  for  giving  the  self-govern- 
ing Colonies  of  Britain  a  share  in  the  financial  Liability 
for  common  defence,  together  with  a  voice  in  the  deter- 
mination of  a  common  foreign  policy.  The  difficulties 
of  constructing  any  constitutional  machinery  for  this 
purpose  are  obvious,  yet  perhaps  not  insurmountable. 
Should  any  such  arrangement  be  ever  reached,  it  will 
probably  be  reached  through  some  crisis  in  the  history 
of  the  Empire  itself. 

Sixty  years  ago  it  was  generally  believed  that  as  soon 
as  each  British  self-governing  colony  had  become  con- 
scious of  its  strength,  it  would  naturally  desire,  and  could 
not  be  refused,  its  independence.  But  the  last  sixty 
years  have  brought  with  them  many  favouring  condi- 
tions ;  and  among  these,  one  of  which  no  one  then 
thought,  the  long  reign  of  a  sovereign  whose  personal 
character,  by  its  purity,  simplicity  and  kindliness,  won 
such  reverence  and  affection,  not  only  for  herself,  but 
also  for  the  ancient  institutions  at  the  head  of  which 
she  stood,  that  the  prolongation  of  her  life  may  be 
reckoned  among  the  causes  which  have  kept  these  far- 
off  lands  a  part  of  the  British  realm  and  have  given  its 
actual  form  to  the  Commonwealth  of  Australia. 


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